Zahara Terms & Conditions
WHO WE ARE AND HOW TO CONTACT US
The terms were updated 14/6/2021 – the previous version is available to view here
Zahara is a cloud workplace approval system for purchases requisition, orders and invoicing.
Zahara and zaharasoftware.com are operated by Zahara Systems Limited (“We” or the “Supplier”). We are a limited company registered in England and Wales under company number 10845313 and have our registered office at Cambridge House, Henry Street, Bath, BA1 1BT. Our VAT number is 325 7582 85.
To contact us, please email firstname.lastname@example.org or telephone our customer service line on +44 (0) 1225 615 075.
If you do not agree to these terms, you must not use Zahara.
We recommend that you print a copy of these terms for future reference.
(A) The Supplier has developed certain cloud-based software applications and platforms which it makes available to subscribers.
(B) The Customer wishes to use the Supplier’s service in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s service subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services as further described in clause 2(d).
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 identified as Confidential Information in clause 5 or clause 11.6.
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.
Effective Date: the date you take out an initial subscription to Zahara.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Subscription Term: the initial term of this agreement as chosen by the Customer and as set out on the Pricing Page.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Pricing Page: the document made available to the Customer by the Supplier online via https://myzaharanet.wpengine.com/pricing/ or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Renewal Period: the period described in clause 1.
Services: the subscription services provided by the Supplier to the Customer under this agreement as more particularly described in the Pricing Page or any other website notified to the Customer by the Supplier from time to time.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out on the Pricing Page.
Subscription Term: has the meaning given in clause 1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy: the Supplier’s knowledge base in relation to the Services as made available at https://help.zaharasoftware.com/portal/en-gb/home, and our support ticketing system at https://help.zaharasoftware.com/portal/en-gb/newticket or such other website addresses as may be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 1 which entitle Authorised Users to access and use the Services in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses are to the clauses of this agreement.
2. User subscriptions
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
- the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
- it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
- each Authorised User shall keep a secure password for their use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep their password confidential;
- 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;
- it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement. 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;
- if any of the audits referred to in clause 2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
- if any of the audits referred to in clause 2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out on the Pricing Page within 10 Business Days of the date of the relevant audit.
2.3 Customer shall not access, store, distribute or transmit any Viruses 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.
2.4 The Customer shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
- 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 Pricing Page (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services and Pricing Page in order to build a product or service which competes with the Services and/or the Pricing Page; or
- use the Services and/or Pricing Page to provide services to third parties; or
- subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or
- introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Additional user subscriptions
3.1 Subject to clause 2 and clause 3.3, the Customer may, from time to time during any Subscription Term and as set out on the Pricing Page, purchase additional User Subscriptions in excess of the number the Customer has initially selected and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier through raising a support ticket. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 2 days of its approval of the Customer’s request.
3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 14 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out on the Pricing Page, or as otherwise agreed, and, if such additional User Subscriptions are purchased by the Customer part way through any Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, save for short periods normally of no more than 30 minutes, in which software patches to improve the Services are applied.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support 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. The Customer may purchase enhanced support, onboarding or additional services separately at the Supplier’s then current rates.
5. Data protection
Note: If you wish to enter into a specific data processing agreement, please contact GDPR@myzahara.net.
5.1 In this clause, the following definitions apply:
- Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
- Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
- Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
- EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
- EU Law: the law of the European Union or any member state of the European Union.
- UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
5.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Zahara is the Processor.
5.4 Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Zahara for the duration and purposes of this agreement.
5.5 Without prejudice to the generality of clause 5.2, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
- process that Personal Data only on the documented written instructions of the Customer unless Zahara is required by Domestic Law to otherwise process that Personal Data. Where Zahara is relying on Domestic Law as the basis for processing Personal Data, Zahara shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless Domestic Law prohibits the Provider from so notifying the Customer;
- ensure 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);
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or Zahara has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- Zahara complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- Zahara complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- 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;
- notify the Customer without undue delay on becoming aware of a Personal Data Breach;
- at 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 Domestic Law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of the Provider, an instruction infringes the Data Protection Legislation.
5.6 The Zahara software is hosted on Microsoft Azure. The Customer consents to the Provider appointing Microsoft as a third-party processor of Personal Data under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business which the Provider confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
5.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
5.8 Processing, Personal Data and Data Subjects
Processing by Zahara
Scope, Nature and Purpose of processing – Dealing with the Customer’s employees and suppliers, and the performance of the Services under this agreement.
Duration of the processing – the duration of the contract.
Types of Personal Data – The Customer’s employees’ names (first name, last name, and title) and business contact details, data relating to the Customer’s purchases of goods and services, business contact details of the Customer’s suppliers.
Categories of Data Subject – Employees and suppliers of the Customer.
6. Third party providers
7. Supplier’s obligations
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Pricing Page and with reasonable skill and care.
7.2 The undertaking at clause 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.
7.3 The Supplier:
(a) does not warrant that:
- the Customer’s use of the Services will be uninterrupted or error-free;
- that the Services, Pricing Page and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
- the Software or the Services will be free from Vulnerabilities or Viruses;
- the Software, Documentation or Services will comply with any Heightened Cybersecurity 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 Pricing Page may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(c) This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.5 The Supplier shall follow its archiving procedures for Customer Data as set out in its security policy available at https://myzaharanet.wpengine.com/zahara-security/or such other website address as may be notified to the Customer from time to time], as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its [Back-Up Policy]. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
8 Customer’s obligations
8.1 The Customer shall:
(a) provide the Supplier with:
- all necessary co-operation in relation to this agreement; and
- all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the 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.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9 Charges and payment
9.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9 and the Pricing Page and any support, onboarding or additional services fees in accordance with clause 3 and the Pricing Page.
9.2 The Customer shall pay the any annual subscription on or before the date indicated on the subscription invoice by a method agreed with the Supplier. The Supplier will raise an invoice for any renewal subscription in advance of the Renewal Date and the Customer will pay this invoice on or before that date.
9.3 Where the Customer has selected a monthly Renewal Period, the customer will set up a regular payment through an automated service such as Chargebee or Xero Autopay. The Customer will be e-mailed an invoice monthly.
9.4 If 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:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b)interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5 All amounts and fees stated or referred to in this agreement:
- shall be payable in the currency selected by the Customer on the Pricing Page;
- are, subject to clause 3(b), non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.6 If, at any time whilst using the Services, the Customer exceeds the parameters specified in the pricing plan selected by the Customer on the Pricing Page, the Supplier shall charge the Customer, and the Customer shall pay, the fees set out in the appropriate pricing plan on the Pricing Page.
9.7 The Subscription Fees payable are those set out on the Pricing Page. From time to time the Supplier may change those prices. Any annual subscription renewal falling after the date of the change of the Pricing Page will be charged at the higher price.
10 Proprietary rights
10. 1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Pricing Page. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 The Supplier confirms that it has all the rights in relation to the Services and the Pricing Page that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11. 1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
11. 2 Subject to clause 4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The above provisions of this clause 11 shall survive termination of this agreement, however arising.
12. 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 Pricing Page, provided that:
- the Customer is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
- the Customer is given sole authority to defend or settle the claim.
12. 2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, 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:
- the Supplier is given prompt notice of any such claim;
- the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
- the Supplier is given sole authority to defend or settle the claim.
12. 3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 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 modification of the Services or Pricing Page by anyone other than the Supplier; or
- the Customer’s use of the Services or Pricing Page in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer’s use of the Services or Pricing Page after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing and clause 3(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13 Limitation of liability
13.1 Except as expressly and specifically provided in this agreement:
- the Customer assumes sole responsibility for results obtained from the use of the Services and the Pricing Page 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;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
- the Services and the Pricing Page are provided to the Customer on an “as is” basis.
13.2 Nothing in this agreement excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier’s negligence; or
- for fraud or fraudulent misrepresentation.
13.3 Subject to clause 1 and clause 13.2:
- the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
- the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13.4 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights”.
14 Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods as selected by the Customer (each a Renewal Period), unless:
- where the Customer has selected monthly Renewal Periods, either party gives the other party 30 days’ written notice of termination, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period;
- where the Customer has selected annual Renewal Periods, either party gives to the other at least 30 days’ written notice of termination, such notice not to expire before the end of the Initial Subscription Term or any Renewal Period; or
- otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 2(c) to clause 14.2(j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
14.3 On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
- 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 this 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 45 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
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
- Any notice of termination sent by the Customer shall be sent to email@example.com
15 Force majeure
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, 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.
If there is an inconsistency between any of the provisions in the main body of this agreement and any document referenced herein, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19 Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21 Entire agreement
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Nothing in this clause shall limit or exclude any liability for fraud.
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22. 2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23 No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24 Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by e-mail to the other party’s e-mail address as notified to the other party in advance.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail shall be deemed to have been received at the time of transmission.
26 Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).