Enterprise Terms

Interpretation

• • The definitions and rules of interpretation in this clause and in the Order Confirmation apply in this agreement.

• Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software.
• 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 1.
• Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Software or facilitating the Customer’s use of the Software.
• Enterprise Particulars: the document found here which sets out a description of the Software
• Enterprise Term: the term of this agreement.
• 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, 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.
• Modification: each modification to the Software made available by the Supplier to all of its enterprise customers from time to time (excluding any modification made outside the scope of this agreement for an individual customer of the Supplier).
• Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
• Software: the software applications described in the Enterprise Particulars and each Modification to them, and licensed by the Supplier on the terms of this agreement.
• Support Services Policy: the Supplier’s policy for providing support in relation to the Software.
• 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 interpreted accordingly.
  • Clause headings shall not affect the interpretation of this agreement.
  • A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
  • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • 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 or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
  • References to clauses are to the clauses of this agreement.

2. Software Usage
   • Subject to the Customer paying the Enterprise Annual Fee in accordance with this agreement and the terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Software, during the Enterprise Term solely for the Customer’s internal business operations.
   • In relation to the Authorised Users, the Customer undertakes that:
     • It will only permit Authorised Users based at the Site to access and use the Software;
     • each Authorised User shall keep a secure password for their use of the Software 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 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(d) 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(d) reveal that the Customer has underpaid Enterprise Annual Fee 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.
   • The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:
     • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
     • facilitates illegal activity;
     • depicts sexually explicit images;
     • promotes unlawful violence;
     • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
     • 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 clause.

• 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 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 Software in order to build a product or service which competes with the Software; or
  • use the Software 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 Software available to any third party except the Authorised Users; or
  • attempt to obtain, or assist third parties in obtaining, access to the Software, 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.
• The Customer shall prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Supplier.
• 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. Support

The Supplier will, 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 here  The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.  The Customer may purchase enhanced services separately at the Supplier’s then current rates.

4. Data protection
   • For the purposes of this clause, the following terms shall have the meanings set against them:
     • Controller, Personal Data and processing: as defined in the Data Protection Legislation.
     • Data Protection Legislation:
       • To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.
       • To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Supplier is subject, which relates to the protection of personal data.
     • EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
     • UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
   • Each party will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
   • The parties acknowledge that for the purposes of the Data Protection Legislation, each party is an independent controller.
5. Third Party Suppliers

The Customer acknowledges that the Software 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 Software.

6. Supplier’s obligations in relation to the Software
   • The Supplier shall on or before the Effective Date and each time that a Modification is made available by the Supplier during the Enterprise Term, provide a download link to the Customer on and subject to the terms of this agreement.
   • The Supplier undertakes that for 90 Business Days following provision of a download link the Software will, when properly used, operate in accordance with the Enterprise Particulars.
   • The undertaking at clause 2 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier’s instructions, or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Software does 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 6.2.
   • The Supplier does not warrant that:
     • the Software and/or the information obtained by the Customer by using the Software will meet the Customer’s requirements; or
     • the Software will be free from Vulnerabilities or Viruses; or
     • the Software will comply with any Heightened Cybersecurity Requirements.
   • 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.
   • 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. Customer’s obligations
   • The Customer shall:
     • 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 Software, including but not limited to Customer Data, security access information and configuration services;

• without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
• 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;
• ensure that the Authorised Users use the Software in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
• 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.

• If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, (including its failure to comply with the provisions of clause 1(f)) then, without prejudice to any other right or remedy it may have, the Supplier shall not be in breach of its obligations until such time that the Customer default is remedied.
• The Customer (or its licensors) 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 all such Customer Data.

8. Charges and payment
   • The Customer shall pay the Enterprise Annual Fee to the Supplier for the Software in accordance with this clause 8 and the Payment Terms. In addition, where its usage exceeds the Supplier’s fair usage levels, it shall pay such sums as the Supplier charges from time to time in respect of such excess.
   • If the Supplier has not received payment on the due date, and without prejudice to any other rights and remedies of the Supplier:
     • the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Software (and the Customer shall give the Supplier such access to the Site(s) as is necessary to that disabling) and the Supplier shall be under no obligation to provide any or all of the support services while the invoice(s) concerned remain unpaid; and
     • 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.
   • All amounts and fees stated or referred to in this agreement:
     • shall be payable in the Agreed Currency;
     • 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.
   • The Supplier shall be entitled to increase the Enterprise Annual Fee with effect upon an anniversary of the Effective Date upon 60 days’ prior notice to the Customer.
9. Proprietary rights
   • The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software. 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, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software or the Enterprise Particulars.
   • The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10. Confidentiality
    • Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, contractors, subcontractors, representatives and advisers (Representatives) to the other party and that party’s Representatives whether before or after the date of this agreement.
    • Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
      • use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
      • disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
    • A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
      • it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
      • at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
    • 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.
11. Indemnity
    • The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Software or Enterprise Particulars in accordance with this agreement infringes any 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:
      • 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.
    • In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Software, replace or modify the Software so that it becomes 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.
    • 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 Software by anyone other than the Supplier; or
      • the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by the Supplier; or
      • the Customer’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
    • 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.
12. Limitation of liability
    • Except as expressly and specifically provided in this agreement:
      • the Customer assumes sole responsibility for results obtained from the use of the Software 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 Software, 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 Software is provided to the Customer on an “as is” basis.
    • 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.
    • Subject to clause 1 and clause 12.2:
      • 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 1), 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 Enterprise Annual Fee paid under this agreement in respect of the month immediately preceding the date on which the claim arose.

13. Term and termination
    • This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue until terminated by either party giving written notice to the other of at least 60 days, such notice to expire on an anniversary of the Effective Date.
    • 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 15 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 30 days after being notified in writing to do so;
      • 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.
    • 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 Software;
      • each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
      • 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 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
      • 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.

14. Force majeure

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving seven days’ written notice to the affected party.

15. Variation

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

16. Waiver
    • A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    • A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17. 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.

18. Severance
    • 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.
    • 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.
19. Entire agreement
    • This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances 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.
20. Assignment
    • The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
    • 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.
21. 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).

22. 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.

23. Notices
    • Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
      • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      • sent by email to the address in the Order Confirmation
    • Any notice shall be deemed to have been received:
      • if delivered by hand, at the time the notice is left at the proper address;
      • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
      • if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
    • This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24. 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 interpreted in accordance with the law of England and Wales.

25. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) provided that either party may enforce any judgement of the courts of England and Wales in the courts of any jurisdiction.