The definitions and rules of interpretation in this clause apply in these Terms.
Authorised Users: those employees, agents and independent contractors of the Subscriber who are authorised by the Subscriber to use the Services and the Documentation, as further described in clause 4.2(d).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Check: a check performed by an Authorised User as part of the Services.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.5 or clause 13.6.
Documentation: any information made available to the Subscriber by the Supplier on the Site or such other web address notified by the Supplier to the Subscriber from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date that the Subscriber accepts these Terms or signs up to use the Service, whichever is earlier.
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 Subscriber or an Authorised User (but not the Supplier) 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 subscription term selected by the Subscriber on the Site when signing up to receive the Services.
Mandatory Policies: the Supplier’s business policies and codes as notified to the Subscriber from time to time.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 16.1.
Services: the SILENTDATA services provided by the Supplier to the Subscriber under these Terms via the Site, as more particularly described in the Documentation.
Site: https://silentdata.com or any other website notified to the Subscriber by the Supplier from time to time.
Software: the online software applications provided by the Supplier as part of the Services.
Subscriber Data: the data inputted by the Subscriber, Authorised Users, or the Supplier on the Subscriber’s behalf for the purpose of using the Services or facilitating the Subscriber’s use of the Services.
Subscription Fees: the subscription fees, if applicable, payable by the Subscriber to the Supplier for the User Subscriptions and requests for Checks, as set out on the Site or as otherwise notified by the Supplier to the Subscriber.
Subscription Term: has the meaning given in clause 16.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions: the user subscriptions which the Subscriber signs up for on the Site and, if applicable, purchases pursuant to clause 11.1, which entitle Authorised Users to access and use the Services and the Documentation for the relevant number of Checks in accordance with these Terms.
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.
Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
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.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Terms under that statute or statutory provision.
A reference to writing or written includes e-mail.
References to clauses and schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.
By signing up to receive the Services via the Site, or otherwise agreeing with the Supplier to receive the Services, the Subscriber agrees to be bound by these Terms.
Variation to these Terms
The Supplier may revise these Terms or any additional terms and conditions that are relevant to the Services from time to time to reflect changes in the law or to the Services by updating the version of these Terms on the Site. The Subscriber agrees to review the Terms regularly and that by continuing to use the Services the Subscriber shall be bound by the current version of the Terms on the Site from time to time. The Subscriber agrees that the Supplier shall not be liable to the Subscriber or to any third party for any modification of the Terms.
Subject to the Subscriber signing up for and, if applicable, purchasing the User Subscriptions in accordance with clause 5.3 and clause 11.1, the restrictions set out in this clause 4 and the other terms and conditions of these Terms, the Supplier hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Subscriber’s internal business operations.
In relation to the Authorised Users, the Subscriber undertakes that:
- the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has signed up for or 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 and/or Documentation;
- each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his 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 Subscriber’s data processing facilities to audit compliance with these Terms. 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 Subscriber’s normal conduct of business;
- if any of the audits referred to in clause 4.2(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 Subscriber 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 4.2(e) reveal that the Subscriber has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Subscriber shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in clause 11 within 10 Business Days of the date of the relevant audit.
The Subscriber shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that, or use the Services in such a way 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;
- is otherwise illegal or causes damage or injury to any person or property
- violates any third party right;
- attempts to impersonate another person or entity;
- falsely states, misrepresents, or conceals your affiliation with another person or entity; or
- improperly solicits personal or sensitive information from other users.
and the Supplier reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s access to the Services or any material that breaches the provisions of this clause.
The Subscriber 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 these Terms:
- 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 Documentation (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 Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
- use the Services and/or Documentation to provide services to third parties; or
- subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4; or
- introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
The rights provided under this clause 4 are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.
The Supplier shall not be liable for anything done by the Subscriber in breach or contravention of this clause 4.
Subject to clause 5.2 and clause 5.3, the Subscriber may, from time to time during any Subscription Term, purchase additional User Subscriptions and/or additional Checks through the Site and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users and/or provide access to additional Checks in accordance with the provisions of these Terms.
If the Subscriber wishes to purchase additional User Subscriptions and/or additional Checks, the Subscriber shall opt to upgrade its User Subscriptions via the Site. The Supplier shall evaluate such request and respond to the Subscriber with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions or additional Checks within 14 days of its approval of the Subscriber’s request.
If the Supplier approves the Subscriber’s request to purchase additional User Subscriptions or additional Checks, the Subscriber shall pay to the Supplier, in accordance with clause 11.2, the relevant fees for such additional User Subscriptions and/or Checks as notified to the Subscriber either by the Supplier or via the Site. If such additional User Subscriptions and/or Checks are purchased by the Subscriber part way through the 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).
The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Subscriber on and subject to the terms of these Terms.
The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Subscriber at least 6 Normal Business Hours’ notice in advance.
The Supplier will, as part of the Services and at no additional cost to the Subscriber, provide the Subscriber with the Supplier’s standard customer support services during Normal Business Hours. The Supplier may amend the standard customer support services it provides in its sole and absolute discretion from time to time. The Subscriber may purchase enhanced support services separately at the Supplier’s then current rates, if applicable.
The Subscriber shall be responsible for the Subscriber Data and complying with any regulations, laws, or conventions applicable to the Subscriber Data and its use of the Services and the Site. The Subscriber warrants that its collection and use of any personal information or data provided while using the Services and the Site complies with all applicable data protection laws, rules, and regulations.
For the purposes of this clause, the following definitions shall apply:
Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic Law;
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: the UK Data Protection Legislation and any other European Union legislation relating to personal data 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 UK Law: the UK Data Protection Legislation and any other law that applies in the UK; and
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
The Supplier and the Subscriber will comply with all applicable requirements of the Data Protection Legislation. This clause 7 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, the Subscriber is the Controller and the Supplier is the Processor.
Without prejudice to the generality of clause 7.3, the Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of these Terms.
Without prejudice to the generality of clause 7.3, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under these Terms:
- process that Personal Data only on the documented written instructions of the Subscriber unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing Personal Data, the Supplier shall promptly notify the Subscriber of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Subscriber;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Subscriber, 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);
- not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Subscriber has been obtained and the following conditions are fulfilled:-
- the Subscriber or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the Personal Data.
- assist the Subscriber, at the Subscriber’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 Subscriber without undue delay on becoming aware of a Personal Data Breach;
- at the written direction of the Subscriber, delete or return Personal Data and copies thereof to the Subscriber on termination of the Services unless required by Applicable Law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance.
The Subscriber provides its prior, general authorisation for the Supplier to appoint processors to process any Personal Data, provided that the Supplier:-
- shall ensure that the terms on which it appoints such processors comply with Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in this clause 7;
- shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
- shall inform the Subscriber of any intended changes concerning the addition or replacement of the processors, thereby giving the Subscriber the opportunity to object to such changes provided that if the Subscriber objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Data Protection Legislation, the Subscriber shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
Third party providers
The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 9.1 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 Subscriber with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Subscriber’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.
- does not warrant that:
- the Subscriber’s use of the Services will be uninterrupted or error-free;
- that the Services, Documentation and/or the information obtained by the Subscriber through the Services will meet the Subscriber’s requirements;
- the Software or the Services will be free from Vulnerabilities or Viruses; or
- the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
- 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 Subscriber acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
These Terms 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 these Terms.
The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
The Supplier shall follow its archiving procedures for Subscriber Data as set out in its Back-Up Policy available at [[WEB ADDRESS] or such other website address as may be notified to the Subscriber 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 Subscriber Data, the Subscriber’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber 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 Subscriber Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Subscriber Data maintenance and back-up for which it shall remain fully liable.
The Subscriber shall:
- provide the Supplier with:
- all necessary co-operation in relation to these Terms; 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 Subscriber Data, security access information and configuration services;
- without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;
- carry out all other Subscriber responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Subscriber’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 Services and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any Authorised User’s breach of these Terms;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in these Terms, 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 Subscriber’s network connections or telecommunications links or caused by the internet.
The Subscriber shall own all right, title and interest in and to all of the Subscriber Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Subscriber Data.
Charges and payment
If the Subscriber opts to receive Services to which Subscription Fees apply, the Subscriber shall pay the Subscription Fees to the Supplier for the User Subscriptions and requests for Checks in accordance with this clause 11 and any applicable support fees in accordance with clause 6.3.
- on the Effective Date, for the Subscription Fees payable in respect of the Initial Subscription Term, if applicable; and
- at any time if the Subscriber opts to receive Services to which Subscription Fees apply, in respect of the remainder of the Initial Subscription Term or the then current Renewal Period;
- at any time if the Subscriber opts to upgrade its User Subscriptions or to receive additional Checks or Services, in respect of the remainder of the Initial Subscription Term or the then current Renewal Period;
- subject to clause 16.1, at the start of each Renewal Period for the Subscription Fees payable in respect of such Renewal Period, if applicable.
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:
- the Supplier may, without liability to the Subscriber, disable the Subscriber’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
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Barclays Bank PLC 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 these Terms:
- shall be payable in pounds sterling;
- are, unless otherwise expressly stated herein, 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 Subscription Fees, the fees payable in respect of the additional User Subscriptions and/or Checks purchased pursuant to clause 5.3 and/or any support fees payable pursuant to clause 6.3 at any time upon 30 days’ prior notice to the Subscriber and such increase shall take effect at the start of the next Renewal Period following such notice.
The Subscriber acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Terms does not grant the Subscriber 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 Services or the Documentation.
The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. 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.
Subject to clause 13.4, 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 these Terms.
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 these Terms.
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 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
The Subscriber acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
The Supplier acknowledges that the Subscriber Data is the Confidential Information of the Subscriber.
No party shall make, or permit any person to make, any public announcement concerning these Terms 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.
The above provisions of this clause 13 shall survive termination of these Terms, however arising.
The Subscriber shall comply with the Mandatory Policies.
The Subscriber 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 (i) any breach of clause 7 (Data Protection) and (ii) the Subscriber’s use of the Services and/or Documentation, provided that:
- the Subscriber is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber’s expense; and
- the Subscriber is given sole authority to defend or settle the claim.
The Supplier shall defend the Subscriber, its officers, directors and employees against any claim that the Subscriber’s use of the Services or Documentation in accordance with these Terms infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:
- the Supplier is given prompt notice of any such claim;
- the Subscriber 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 no event shall the Supplier, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than the Supplier; or
- the Subscriber’s use of the Services or Documentation in a manner contrary to the instructions given to the Subscriber by the Supplier; or
- the Subscriber’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
The foregoing and clause 15.3(b) state the Subscriber’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.
Limitation of liability
Except as expressly and specifically provided in these Terms:
- the Subscriber assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Subscriber, 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 Subscriber in connection with the Services, or any actions taken by the Supplier at the Subscriber’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 these Terms; and
- the Services and the Documentation are provided to the Subscriber on an “as is” basis.
Nothing in these Terms 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 15.1 and clause 15.2:
- 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 these Terms; and
- the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to (i) total Subscription Fees paid or payable for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose or (ii) in the event that no Subscription Fees are paid or payable in respect of such period, the equivalent total Subscription Fees that would have been paid under the most basic chargeable plan during the 12 months immediately preceding the date on which the claim arose.
Term and termination
The Services shall commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for:-
- in the event that the Subscriber has selected an Initial Subscription Term of 1 month, successive periods of 1 month; and
- in the event that the Subscriber has selected an Initial Subscription Term of 12 months, successive periods of 12 months,
(in each case, each a Renewal Period), unless terminated in accordance with clause 15.2, and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
The Services shall not automatically renew under clause 16.1 if:
- the Subscriber cancels its subscription to the Services via the Site at any time prior to the end of the Initial Subscription Term or any Renewal Period, in which case the provision of the Services shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period;
- the Supplier notifies the Subscriber of termination at any time prior to the end of the Initial Subscription Term or any Renewal Period, in which case the provision of the Services shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- they are otherwise terminated in accordance with the provisions of these Terms.
- the other party fails to pay any amount due under these Terms on the due date for payment and remains in default 14 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 3 Business 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 16.4(c) to clause 16.4(j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- 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 these Terms is in jeopardy; or
- there is a change of control of the other party.
On termination of the Services by either party pursuant to clause 16.2 or by the Supplier pursuant to clause 16.4, there shall be no refund of any Subscription Fees already paid by the Subscriber.
On termination of the Services by the Supplier pursuant to clause 16.3, the Supplier shall refund pro-rata any Subscription Fees which have already been paid by the Subscriber which are applicable to the period after the date of termination until the end of the Initial Subscription Term or the then current Renewal Period.
On termination of the Services for any reason:
- all licences granted under these Terms shall immediately terminate and the Subscriber shall immediately cease all use of the Services and/or the Documentation;
- 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 Subscriber Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of these Terms, a written request for the delivery to the Subscriber of the then most recent back-up of the Subscriber Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Subscriber within 30 days of its receipt of such a written request, provided that the Subscriber 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 Subscriber shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Subscriber 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.
The Supplier may suspend any use of the Services, remove any content or disable or terminate any Authorised User that the Supplier reasonably and in good faith believes violates these Terms. The Supplier will use commercially reasonable efforts to notify the Subscriber prior to any such suspension or disablement, unless the Supplier reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the Services or a third party. Under circumstances where notice is delayed, the Supplier will provide the notice if and when such restrictions no longer apply.
The Supplier shall have no liability to the Subscriber under these Terms if it is prevented from or delayed in performing its obligations under these Terms, 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, pandemic, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, earthquake, flood, storm or default of suppliers or sub-contractors, provided that, where possible, the Subscriber 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 these Terms and the Site, the provisions in the main body of these Terms shall prevail.
No failure or delay by a party to exercise any right or remedy provided under these Terms 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.
Rights and remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of these Terms 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 these Terms.
These Terms constitute the entire agreement between the parties and supersede and extinguish 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 these Terms 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 these Terms.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
Nothing in this clause shall limit or exclude any liability for fraud.
The Subscriber shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
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 these Terms.
No partnership or agency
Nothing in these Terms 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).
Third party rights
These Terms does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under these Terms shall be in writing and shall be sent by email to the other party’s email address, in the case of the Supplier as set out on the Site, and in the case of the Subscriber as last notified to the Supplier in your online account. A notice sent by email shall be deemed to have been received at the time of transmission.
These Terms and any dispute or claim arising out of or in connection with them or their 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 these Terms or their subject matter or formation (including non-contractual disputes or claims).