Imagen Ltd Terms and Conditions of Business
This MASTER SERVICES AGREEMENT is entered into between Service Provider and Client (each a “Party” and together the “Parties”).
A: Service Provider owns and/or controls various proprietary software and is in the business of providing online software services.
B: Client wishes to purchase and receive certain online software services from Service Provider.
C: The Parties have agreed that Service Provider will provide Client with the Services on the terms and conditions of this Agreement.
1.1 In this Agreement, the following words and expressions shall have the following meanings:
Acceptable Usage Policy: means the policy setting out the terms upon which the Platform may be accessed by Permitted Users (as may be updated and supplemented by Service Provider from time to time), the current version of which is set out at Schedule 2.
Agreement: means this agreement which consists of the Order Form, this Master Services Agreement and any Statement of Work entered into pursuant to this Master Services Agreement.
Applicable Law: means all laws, statutes, regulations and regulatory codes of any governmental or other regulatory body of competent jurisdiction and any orders of any court or other tribunal of competent jurisdiction which are applicable to this Agreement or to the performance by a Party of its obligations under this Agreement.
Availability Period means the period of thirty (30) days following the effective date of termination or expiration of this Agreement, or such longer period as agreed between the Parties in writing.
Business Day: means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England.
Clearances: means all rights, licences, permissions, consents and other clearances required in respect of the Client Materials in order for Service Provider to perform its obligations under this Agreement.
Client: means the client specified in the Order Form.
Confidential Information: means the contents of this Agreement and any information relating in any manner to the business and/or affairs of either Party which may be communicated to the other under or in connection with this Agreement.
Client Customers: has the meaning set out in the Order Form.
Client Data: has the meaning given to it in Clause 7.1. and includes the MySQL database, Storage database, Media Control Centre database, customer website configuration (not included in the Theme) pertaining to the Platform Services provided to Client.
Client Materials means any and all information, content, branding and materials supplied to Service Provider by or on behalf of Client for use in connection with the performance of this Agreement, including Client Data and Media.
Client Users: means, subject to the Logging – Number of Seats, any employee of Client who is authorised by Client to use the Platform Services on its behalf.
Data Protection Legislation: means all applicable data protection and privacy and marketing legislation, including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and Regulation (EU) 2016/679, together with any codes of practice and/or regulatory guidance or rulings, relating to the same, each as superseded or amended from time to time.
Documentation: means such online user guides, specifications, documentation, help and training materials, as provided by Service Provider to Client from time to time and/or accessible via www.imagenevp.com or login to the applicable service.
Domain Name System (DNS): means the hierarchical decentralized naming system for computers, services, or other resources connected to the Internet or a private network
Event of Force Majeure: has the meaning given to it in Clause 15.
Fees: means the amounts payable by Client in respect of the Services as set out in the Order Form and Statements of Work.
Initial Term: has the meaning set out in the Order Form.
Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
Liabilities: means all costs and expenses, losses, liabilities, obligations, damages, deficiencies, penalties, interest and expenses (including the reasonable fees and expenses of solicitors and other professionals and specialists) and other adverse effects resulting from any and all allegations, claims, judgments or causes of action.
Logging Limits: means the maximum number of Client Users set out as the “Logging – Number of Seats” in the Order Form.
Master Services Agreement: means this master services agreement including any and all Schedules.
Media: means audio, video, images, documents or other miscellaneous files uploaded to the Platform by or on behalf of Client.
Order Effective Date: has the meaning given to it in the Order Form.
Order Form: means the order form signed by the Parties to which this Master Services Agreement is appended.
Permitted Users: means Client Users and Client Customers.
Platform: means Service Provider’s proprietary software platform for managing Media.
Platform Services: has the meaning set out in the Order Form.
Professional Services: means the services carried out by Service Provider in conjunction with the Platform Services as defined in a Statement of Work.
Proprietary Methods & Materials: means all methods, methodologies, products, documentation, processes, tools, techniques, databases, know how, software or other materials owned or licensed by Service Provider (whether conceived, reduced to practice or developed outside the scope of this Agreement prior to the Order Effective Date and/or during the Term), comprised within the Platform, the Services or the Documentation or otherwise utilised by Service Provider in the performance of this Agreement.
Reference Manual: means the most current version of the reference manual provided by Service Provider to Client from time to time describing the functionality of the Platform Services.
Remote Desktop Protocols: means computing protocol, which provides a user with a graphical interface to connect to another computer over a network connection.
Renewal Period: has the meaning given to it in Clause 2.2.
Scope of Use: means the scope of use set out in the Order Form.
Service Provider: means IMAGEN LTD, incorporated and registered in England and Wales with company number 3155233 whose registered office is at 1 Grange Court, Covent Garden, Willingham, Cambridge CB24 5AH.
Services: means the Platform Services, the Professional Services and the other services to be provided by Service Provider to Client pursuant to this Agreement.
Service Level Agreement: means the service level agreement set out at Schedule 1.
Statement of Work: means a statement of work substantially in the form set out at Schedule 3 which sets out the Professional Services to be performed by Service Provider.
Term: means, subject to earlier termination in accordance with the terms of this Agreement, the Initial Term and any Renewal Period(s).
Unacceptable Content: means any material of any nature which is or which contains anything which is or may be offensive, blasphemous, obscene or otherwise unlawful or which may infringe the rights including the Intellectual Property Rights of any person.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Unless the context otherwise requires:
1.3.1 words in the singular shall include the plural and in the plural shall include the singular;
1.3.2 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.3.3 a reference to one gender shall include a reference to the other genders; and
1.3.4 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this Master Services Agreement and any provision contained in the Schedules, the provision in the body of this Master Services Agreement shall take precedence.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.6 References to Clauses and Schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
2.1 This Agreement shall be legally binding on the Parties on and from the date it is executed by both Parties but shall be deemed to have effect from the Order Effective Date and will continue, unless terminated earlier in accordance with its terms, until expiry of the Term.
2.2 Following the Initial Term, the Agreement will automatically renew for successive periods of 12 months (each a Renewal Period) unless either Party provides written notice of termination to the other Party at least 60 days prior to the expiry of the Initial Term or any Renewal Period.
2.3 Service Provider shall be entitled to increase the Fees payable in respect of any Renewal Period by provision of written notice to Client no less than 90 days prior to expiry of the Initial Term or relevant Renewal Period (as applicable).
3 THE PLATFORM SERVICES
3.1 Subject to provision of such Client Materials and network access to storage facilities as Service Provider may reasonably require, Service Provider shall configure the Platform to provide the Platform Services in accordance with the Scope of Use.
3.2 Following configuration pursuant to Clause 3.1, Service Provider agrees to grant the Permitted Users access to the Platform during the Term solely for the purpose of using the Platform Services in accordance with the Scope of Use.
3.3 Service Provider shall provide the Platform Services in accordance with the Service Level Agreement.
3.4 Service Provider shall provide, or provide a means of generating, a unique username and password for each Permitted User.
3.5 Client acknowledges that it (and the Permitted Users) shall have no other rights to use the Platform save as expressly set out in this Agreement.
4 THE PROFESSIONAL SERVICES
4.1 Any Professional Services to be provided under this Agreement will be agreed between the Parties and set out in a Statement of Work.
4.2 Once signed by each Party’s authorised representative, any Statement of Work will be binding on the Parties and, subject to Clause 4.3, any amendments to such Statement of Work must be agreed in writing by the Parties. Until a Statement of Work is signed by the Parties in accordance with this Clause 4.2 it shall have no force or effect.
4.3 In respect of any Statements of Work entered into in accordance with this Agreement, the Parties agree that such Statement of Work:
4.3.1 shall commence on the date of execution of the Statement of Work by both Parties or, if different, the commencement date specified therein and, unless terminated earlier in accordance with this Agreement, shall continue until the earlier of: (i) the end of the service period set out therein; or (ii) the end of the Term; and
4.3.2 form part of and shall be subject to terms of this Agreement.
5 SERVICE PROVIDER’S OBLIGATIONS
5.1 Service Provider shall provide the Services to Client in accordance with the terms of this Agreement.
5.2 Service Provider shall provide Client with such information and advice in connection with the Services and the provision thereof as Client may, from time to time, reasonably require both before and during the provision of the Services.
5.3 Throughout the Term, Service Provider shall:
5.3.1 obtain public liability Insurance sufficient to meet all liabilities which it may incur in the performance of this Agreement; and
5.3.2 obtain and maintain for the duration of the Term all permissions, licences and consents necessary to perform the Services in accordance with the terms of this Agreement.
5.4 Service Provider may alter, improve or otherwise modify the Services provided that any such change will not, at Service Provider’s reasonable discretion, significantly alter the provision of the Services or result in the removal of any material features or services that form part of the Services. Service Provider will use reasonable endeavours to notify Client no later than five (5) Business Days in advance of any planned changes and to provide Client with full documentation of any action required on their part. No alterations under this sub-Clause 5.4 shall affect the Fees payable by Client in the payment period in which such change is notified to Client.
6 USE OF PLATFORM AND CLIENT’S OBLIGATIONS
6.1 Client acknowledges and agrees that Client is responsible for
6.1.1 the storage of Media and Client Data for the duration of the Term;
6.1.2 the security and access protocols relating to any Media and Client Data stored on Client systems and hardware;
6.1.3 making necessary back-ups of Media and Client Data, and Service Provider shall have no responsibility or liability for any loss or corruption of Media and/or Client Data.
6.2 Client shall:
6.2.1 cooperate fully and provide such assistance as Service Provider may reasonably require in the performance of this Agreement;
6.2.2 provide all Client Materials to Service Provider in such format and via such method as Service Provider may reasonably require;
6.2.3 ensure that the Client Materials comply with Applicable Law and do not contain any Unacceptable Content;
6.2.4 obtain all necessary Clearances;
6.2.5 ensure that it meets any dependencies and relevant system specifications notified by Service Provider to Client from time to time (including the minimum technical requirements for user IT equipment, hardware, other software, network access, network security, internal and external Domain Name System (DNS) resolution of fully qualified domain names for the Platform Services, and other matters not in Service Provider’s control);
6.2.6 be solely responsible for procuring and maintaining Client’s hardware, storage facilities, network connections and telecommunications links from Client systems to the Platform Services, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client’s network connections or telecommunications links; and
6.2.7 ensure that the Platform Services are used in accordance with the Documentation and Applicable Laws.
6.2.8 use virus detection software which is maintained in accordance with good industry practice.
6.3 Client undertakes to Service Provider throughout the Term to promptly:
6.3.1 undertake all actions necessary to enable permanent and full remote access to the Platform Services via Remote Desktop Protocols;
6.3.2 manage the patching of Client’s server operating systems;
6.3.3 to make available at the Client’s premises such facilities as the Service Provider shall reasonably require in order to discharge its obligations hereunder and to take all reasonable precautions to protect the health and safety of the Service Provider’s employees, agents and sub-contractors while on the Client’s premises, should on-site attendance by Service Provider be deemed necessary;
6.3.4 supply all documentation and other information necessary for and or required by Service Provider to diagnose any fault in the Services and / or meet its obligations hereunder; and
6.3.5 notify any fault or failure in the Services to Service Provider as soon as reasonably practicable after it arises and promptly supply Service Provider with a detailed description and/or documented example of such fault or failure where required and reasonably practical.
6.3.6 notify the Service Provider if Client becomes aware of a software virus that is contained in or affects any part of the Client’s system which might affect the Platform Services and Client shall take all reasonable steps within its control to remedy the problem and to prevent reoccurrence.
6.4 Client shall:
6.4.1 comply, and shall ensure that the Permitted Users comply, with the Acceptable Usage Policy; and
6.4.2 indemnify Service Provider against any and all Liabilities suffered or incurred by Service Provider arising out of or in connection with any breach of Clause 6.4.1.
6.5 Without prejudice to any other right or remedy, Service Provider reserves the right to suspend Client’s and/or any Permitted User’s access to the Platform and/or Platform Services in the event that:
6.5.1 Client and/or a Permitted User is in breach of this Agreement or otherwise engaged in, or Service Provider in good faith suspects they are engaged in, any unauthorised conduct (including any violation of any applicable law or third-party rights); or
6.5.2 there has been unauthorised access to a Permitted User’s account.
6.6 Service Provider will provide Client with prompt notice if it suspends one or more Permitted User’s access to the Platform and/or Platform Services and will restore access as soon as reasonably practicable once the situation is remedied.
7 CLIENT DATA
7.1 The Parties acknowledge and agree that, as between the Parties, Client shall be the data controller and Service Provider shall be the data processor in respect of all personal data relating to Permitted Users or otherwise relating to or contained within the Client Materials (“Client Data”). For the purposes of this Clause 7, the terms controller, processor, personal data and processing shall have the meaning given to them in Article 4 of Regulation (EU) 2016/679.
7.2 Service Provider shall only process Client Data in accordance with this Agreement and/or Client’s express instructions.
7.3 Each Party agrees that, in performing its obligations under this Agreement, it shall comply with all applicable Data Protection Legislation, including having appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
7.4 Client acknowledges and agrees that it is responsible for ensuring that all necessary clearances, consents and/or permissions are obtained, or that suitable conditions are satisfied, to enable Service Provider to process any Client Data under this Agreement, and such clearances, consents, permissions and/or conditions shall in any event be obtained and/or satisfied (as applicable) in advance of the date on which any such Client Data is provided to Service Provider pursuant to this Agreement.
8.1 Subject to Clauses 8.1 and 8.2, each Party undertakes that it shall, at all times during the continuance of this Agreement and for and for a period of six (6) years following expiry or termination of it:
8.1.1 keep confidential all Confidential Information;
8.1.2 not disclose any Confidential Information to any other party;
8.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms and conditions of this Agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
8.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of Clauses 8.1.1 to 8.1.4.
8.2 Either Party may disclose any Confidential Information as authorised by the other Party in writing or to:
8.2.1 any sub-contractor or supplier of that Party;
8.2.2 any professional advisor;
8.2.3 any governmental authority or regulatory body; or
8.2.4 any employee or officer of that Party or of any of the aforementioned persons, Parties or bodies,
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in Clause 8.2.3) requiring the person in question to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
8.3 The provisions of Clause 8.1 shall not apply to any information which:
8.3.1 was already in the lawful possession of the Party to whom it is disclosed at the time of such disclosure unless such possession arose as a result of a breach of confidence;
8.3.2 is or comes into in the public domain other than as a result of the breach of this Agreement; or
8.3.3 is obtained by the recipient Party from a bona fide third party having no restraint on its free right of disposal of such information.
8.4 The provisions of this Clause 8 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
8.5 Subject to Clause 18, neither Party shall make or authorise or permit any other person to make any announcement or other like statement concerning this Agreement or the subject matter, terms or conditions hereof, without the other Party’s prior written consent.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 Service Provider will not acquire ownership of any Intellectual Property Rights subsisting in any Client Materials.
9.2 Client hereby grants, and warrants that it is (and shall remain) entitled to grant, to Service Provider a royalty-free, non-exclusive licence to use, display and make available the Client Materials for the purposes of providing the Services in accordance with this Agreement.
9.3 Neither Client nor any Permitted User will acquire ownership of any Intellectual Property Rights subsisting in the Platform and/or any Proprietary Methods & Materials.
9.4 Client acknowledges that all Intellectual Property Rights in the Platform and the Proprietary Methods & Materials belong and shall belong to Service Provider or its licensors (as the case may be), and Client shall have no rights in or to the same other than the limited rights of use specified in accordance with the terms of this Agreement. Should any right, title or interest in Service Provider’s Intellectual Property Rights vest to any extent in Client, Client shall do all such things and execute all such documents as Service Provider may reasonably request in order to assign, transfer or otherwise vest all such rights in such Intellectual Property Rights in Service Provider.
9.5 Client hereby indemnifies and agrees to indemnify and hold harmless Service Provider against any and all Liabilities that Service Provider may incur or be subject to as a result of or in connection with any claim that the Client Materials: (i) contain Unacceptable Content; or (ii) infringe, or that Service Provider’s or any Permitted User’s use of such Client Materials in accordance with this Agreement infringes, any rights (including any Intellectual Property Rights) belonging to any third party.
9.6 Service Provider hereby agrees to fully indemnify and hold harmless Client from and against any Liabilities incurred by or awarded against Client as a result of or in connection with any claim that its receipt of the Services (excluding any Client Materials) in accordance with the terms of this Agreement infringes any rights (including Intellectual Property Rights) belonging to any third party (“Claim”).
9.7 If any third party makes a Claim, or notifies an intention to make a Claim against Client, Client shall:
9.7.1 as soon as reasonably practicable, give written notice of the Claim to Service Provider, specifying the nature of the Claim in reasonable detail;
9.7.2 not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Service Provider (such consent not to be unreasonably conditioned, withheld or delayed);
9.7.3 give Service Provider and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Client, so as to enable Service Provider and its professional advisers to examine them and to take copies (at Service Provider’s expense) for the purpose of assessing the Claim; and
9.7.4 take such action as Service Provider may reasonably request to avoid, dispute, compromise or defend the Claim.
9.8 If any Claim is made, or in Service Provider’s reasonable opinion is likely to be made, against Client, Service Provider may at its sole option and expense:
9.8.1 procure for Client the right to continue to use the Platform Services (or any part thereof) in accordance with the terms of this Agreement;
9.8.2 modify or replace functionality of the Platform Services with substantially equivalent functionality such that the same is no longer infringing; or
9.8.3 terminate this Agreement immediately by notice in writing to Client and refund any pre-paid portion of the Platform Services Fees applicable to the period after the date of termination.
9.9 Subject to Clause 14, Clauses 9.6-9.8 constitute Client’s exclusive remedy and Service Provider’s only liability in respect of Claims.
10 FEES AND PAYMENT
10.1 In consideration of the provision of the Services by Service Provider, Client agrees to pay the Fees.
10.2 The Parties acknowledge that the Fees have been calculated on the basis of the Description of Services and Scope of Use set out in the Order Form. If at any time during the Term Client exceeds or wishes to increase the applicable parameters, the Fees shall be increased in accordance with Service Provider’s then current rate card.
10.3 Payments by Client to Service Provider shall be made by the method and in accordance with the payment provisions set out in the Order Form. Unless otherwise stated in the Order Form, invoiced sums are due within thirty (30) days from the invoice date. Client shall pay all amounts due to Service Provider without withholding, deduction or set off for any reason (including in respect of tax) on or before the due date for payment.
10.4 In this Agreement, all Fees are stated exclusive of any applicable VAT or other sales tax, which shall be payable by Client at the prevailing rate subject only to receipt of a valid VAT invoice from Service Provider.
10.5 Without limiting Service Provider’s other rights and remedies, interest on late payments will accrue at four per cent (4%) per annum above Barclays Bank base rate from time to time from the due date for payment to the date of actual payment and continue to accrue notwithstanding termination or expiry of this Agreement.
10.6 Client is responsible for providing complete and accurate billing and contact information to Service Provider and notifying Service Provider of any changes to such information.
10.7 Client acknowledges and agrees that Client’s payment of the Fees is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Service Provider regarding future functionality or features of the Platform or Services.
11.1 Either Party may terminate this Agreement upon written notice to the other Party if:
11.1.1 any undisputed sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within thirty (30) days of the due date for payment;
11.1.2 the other Party commits any other material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within ten (10) Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
11.1.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
11.1.4 the other Party becomes insolvent or admits inability to pay its debts generally as they become due or makes any voluntary or involuntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
11.1.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under these terms and conditions);
11.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party; or
11.1.7 the other Party ceases, or threatens to cease, to carry on business.
11.2 Service Provider may terminate this Agreement on provision of written notice to Client if there is a change of control of Client (within the meaning of section 1124 of the Corporation Tax Act 2010).
11.3 If requested by Client, Service Provider will use reasonable endeavours to make any stored Client Data available to Client during the Availability Period. Following expiry of the Availability Period, Service Provider will have no obligation to maintain or provide such Client Data and may thereafter delete or destroy all copies of such Client Data in Service Provider’s systems, or otherwise in Service Provider’s possession or control, without liability to Client.
11.4 A Party’s right to terminate this Agreement under this Clause 11 shall not prejudice any other right or remedy of that Party in respect of the breach concerned (if any) or any other breach.
12 POST-TERMINATION PROVISIONS
12.1 Upon the termination or expiry of this Agreement for any reason:
12.1.1 all sums due to Service Provider from Client shall immediately become due and payable;
12.1.2 all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect; and
12.1.3 all rights granted to Client in this Agreement in relation to the use of the Services shall terminate.
12.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
13 WARRANTIES, REPRESENTATIONS AND DISCLAIMER
13.1 Service Provider warrants to Client that the Platform Services will operate in all material respects in accordance with the Reference Manual during the Term. The foregoing warranty shall not apply to performance issues of Platform Services:
13.1.1 caused by an Event of Force Majeure;
13.1.2 caused by Client’s or Permitted Users’ hardware, other software, network connections and telecommunications links to the Platform Services, and for all problems, conditions, any software virus, delays, delivery failures and all other loss or damage arising from or relating to the Client’s or Permitted Users’ hardware, other software, network connections or telecommunications links; and/or
13.1.3 that result from any improper or unauthorised operation of the Platform Services by Client or the Permitted Users.
13.2 As Client’s sole and exclusive remedy for any breach of the warranty given by Service Provider in Clause 13.1, Service Provider will use its commercially reasonable efforts to correct any failure of the Platform Services such that they will operate in all material respects in accordance with the Reference Manual, or (at is discretion);
13.2.1 replace functionality of the Platform Services with substantially equivalent functionality which substantially conforms to the Reference Manual; or
13.2.2 terminate this Agreement immediately by notice in writing to Client and refund any pre-paid portion of the Fees applicable to period after the date of termination.
13.3 Service Provider shall have no obligation to correct any failure with the Platform Services in accordance with Clause 13.2 unless notified in writing of such failure within thirty (30) days of it first being identified by Client.
13.4 Service Provider will perform all Professional Services in a professional, workmanlike manner in compliance with industry standards. Client’s sole remedy for breach of this warranty shall be for Service Provider to re-perform the non-conforming Professional Services.
13.5 Service Provider warrants that it has the right to enter into this Agreement and to provide the Services to Client as contemplated by this Agreement.
13.6 Warranty Disclaimers. Subject to Clause 14.1, the express warranties provided by Service Provider in respect of the Services as set out in this Agreement are in lieu of all other warranties, whether express or implied, or statutory, regarding the Services or their operation, functionality, performance, merchantability or fitness for any particular purpose, including any implied warranties of merchantability or fitness for a particular purpose and non-infringement of third-party rights (all of which are disclaimed to the extent permitted by law). Service Provider does not warrant that any of the Services will meet Client’s needs or requirements, or that the use of any Services will be uninterrupted or error-free, or that all errors will be detected or corrected.
14 LIMITATION OF LIABILITY
14.1 Nothing in this Agreement limits or excludes either Party’s liability:
14.1.1 for fraud (including any fraudulent misrepresentation) by it or its officers, employees, agents or sub-contractors;
14.1.2 for breach of any condition implied by statute which cannot be excluded and/or in respect of which a Party cannot lawfully limit or exclude its liability;
14.1.3 for death or personal injury caused by its negligence or that of its officers, employees, agents or subcontractors (as applicable); or
14.1.4 for any other liability which cannot be lawfully limited or excluded.
14.2 Neither Party shall be liable or responsible to the other in contract, tort or otherwise (including any liability for negligence) for:
14.2.1 any loss of revenue, data, business, contracts, anticipated savings or profits, or any loss of use of facilities; or
14.2.2 any special, indirect or consequential loss,
in each case arising out of or in connection with this Agreement.
14.3 For the purposes of Clause 14.2.1, “anticipated savings” means any expense which either Party expects to avoid incurring or to incur to a lesser degree than would otherwise have been the case by reason of the use of the Services provided by Service Provider under this Agreement.
14.4 Subject to Clauses 14.1, 14.2 and 14.5, the total aggregate liability of each Party to the other Party under or in connection with this Agreement shall not exceed a sum equal to the Fees paid to Service Provider in the year of any claim.
14.5 The limit in Clause 14.4 shall not apply to: (a) Service Provider’s liability pursuant to Clause 9.6; or (b) Client’s liability pursuant to Clause 3.5.2 or 9.5, where the liability of the relevant Party shall not exceed a sum which is the greater of: (i) the Fees paid by Client to Service Provider under this Agreement; and (ii) £500,000 (five hundred thousand pounds).
15 FORCE MAJURE
Notwithstanding Client’s obligation to pay the Fees which shall be unaffected by this Clause 15, neither Party shall be liable to the other Party for any failure or delay in performance to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorism, embargo, government requirement, export controls, failure of utilities, civil or military authority, act of God, act or omission of carriers or other causes beyond its reasonable control (each an “Event of Force Majeure”). If any such Event of Force Majeure occurs, the Party delayed or unable to perform shall give prompt notice to the other Party. During an Event of Force Majeure, the affected Party shall exercise reasonable effort to mitigate the effect of the event of force majeure.
16 NATURE OF THE AGREEMENT BETWEEN THE PARTIES
16.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties. This Agreement supersedes all prior communications, contracts, or agreements between the Parties with respect to the subject matter addressed in this Agreement, whether oral or written.
16.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
16.3 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
16.4 At its own expense, each Party shall, use all reasonable endeavours to procure that any necessary actions are performed as may reasonably be required for the purpose of giving full effect to this Agreement. Nothing in this Agreement shall constitute, or be deemed to constitute a partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, an agency of any other party for any purpose.
16.5 Subject to any express provisions to the contrary in this Agreement, neither Party shall have any right or authority to, and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, or assume any obligation, whether express or implied, of any kind on behalf of the other Party or bind the other Party in any way.
17.1 Client shall not without the prior written consent of Service Provider assign, transfer, sub-contract or deal in any other manner with any of it rights or obligations under this Agreement.
17.2 Service Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Client agrees that Service Provider may issue a press release announcing the Parties’ entry into this Agreement, subject to the reasonable approval by Client of the content of such release. Thereafter, if a Party wishes to issue a subsequent press release concerning the terms of this Agreement or the relationship between the Parties, then such Party shall submit the statement to the other Party for review and approval in its sole discretion. In addition, Client hereby grants Service Provider a worldwide licence to reference Client’s name and logo in its sales literature, customer list, website, as a customer of Service Provider, during the Term. This licence is for use of the name and logo only, and such use shall not be combined with any statements attributable to or concerning Client, without Client’s express written consent, which may be withheld in Client’s sole discretion. Subject to Clause 9.2, use of Client’s name and logo shall be limited to the use by Service Provider as specified in this Clause but otherwise shall confer no other rights to the name and service marks of Client. This right to use Client’s name and logo is at all times subject to Service Provider complying with Client’s trade mark guidelines (if any) as provided to Service Provider from time to time.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
20.1 All notices under this Agreement shall be in writing and be signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
20.2 Notices shall be deemed to have been duly given:
20.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
20.2.2 when sent, if transmitted by e-mail and no automated delivery failure message is received and a Party complies with any automatic response received directing emails to be sent to a different email address; or
20.2.3 on the fifth Business Day following mailing, if mailed by national ordinary mail, postage prepaid; or
20.2.4 on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
22 THIRD-PARTY RIGHTS
A person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third-party which exists, or is available, apart from that Act.
23 GOVERNING LAW AND JURISDICTION
23.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
23.2 Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.
23.3 Nothing in this Clause shall limit Service Provider’s right to take proceedings against Client in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the issuing of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.