1.1 In this agreement:
Authorised Users means those employees and agents of the Customer only, who are authorised by the Customer to use the Software and its ancillary documentation, in respect of whom the Customer has purchased a User Licence, and who have agreed to the terms of the EULA.
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland, other specified within the SLA.
Commencement Date means the date that the Customer first pays Subscription Fees in respect of any Authorised User(s).
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation the Software and its ancillary documentation) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party.
Customer means the organisation which has purchased User Licences from the Supplier from time to time.
Customer Data means the data, content and images inputted by the Customer, the Authorised Users, or (if applicable) the Supplier (or its sub-contractors) on the Customer’s behalf for the purpose of facilitating the Customer’s or the Authorised Users’ use of the Software.
Customer Equipment means, in respect of the Cloud Software, a functioning hardware system and software facilitating access to a modern internet browser, namely, Google Chrome, Mozilla Firefox, Safari or Microsoft Internet Explorer in version 10 or above and, in respect of the App, a modern Apple or Android device capable of running applications, access to the Apple/Google application stores, internet access and Wi-Fi access where refreshing templates or submitting data.
Data Protection Law means (a) any legislation in force from time to time in the United Kingdom which implements the European Community’s Directive 95/46/EC and Directive 2002/58/EC, including but not limited to the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; (b) with effect from 25 May 2018 only, the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “General Data Protection Regulation” or GDPR) and any legislation in force from time to time in the United Kingdom which implements the GDPR; and (c) any statutory codes of practice issued by the UK Information Commissioner (or its equivalent in other territories) in relation to such legislation.
EULA means the end-user licence agreement and privacy and cookies policy which all Authorised Users are required to sign up to before beginning to use the Services.
Initial Subscription Term means the initial subscription term either specified online when the Customer first signs up to use the Services, or set out in the written quotation provided by the Supplier, which period shall be 12 months unless otherwise specified or agreed.
Licence Restrictions means the licence restrictions specified in this Agreement.
Licence Type means a User Licence
Purpose means accessing and using the Services to develop and create a framework for the Customer’s bespoke audit and inspection compliance requirements, to work with that framework, and otherwise make use of any of the functionality offered by the Software (including that contemplated within the Documents) for its functionally contemplated purposes only.
Renewal Period means rolling terms of 12 months (or such other period as the Supplier may agree in writing with the Customer either in the written quotation provided by the Supplier or specified online).
Service Charges means the service charges that the Supplier confirms to the Customer from time to time in respect of any bespoke services requested by the Customer.
Software means the Supplier’s browser based automated audit and inspection compliance software application, AuditComplyTM, which provides User access to the AuditComplyTM portal and templates (Cloud Software), and mobile based audit compliance software application, “AuditComply”TM, which provides User access only (the App) (each or both, as applicable, of the Cloud Software and the App together the Software), and which includes any upgrades either: (a) purchased by the Customer from time to time in return for payment of the Supplier’s then prevailing charges; or (b) to which the Customer is otherwise entitled under the terms of this agreement.
Subscription Fees means the total amounts specified online to the Customer when purchasing User Licences from time to time or otherwise payable in accordance with the terms of this agreement, to be paid in accordance with the timeframes and other stipulations set out in this agreement.
Subscription Term means, in respect of each User Licence, the term beginning on the Commencement Date, and continuing for the Initial Subscription Term, and any Renewal Periods (subject to clause 13.3), unless and until this agreement is terminated in accordance with its terms.
Supplier means AuditComply Ltd (company number NI623693) whose registered office is at Alexander House, 17A Ormeau Avenue, Belfast, BT2 8HD.
Support means the support services to be provided by the Supplier in relation to each Authorised User, for the relevant Subscription Term, and made available, unless otherwise specified, during the Supplier’s standard business hours, as per Support License Agreement (SLA) either via telephone consultation (+44 2890 328115) or email contact email@example.com. The Supplier may also provide online support resources for Authorised Users.
Term means the term of this agreement as defined in clause 13.1.
Services means hosting of the Software and making it available for access to Users (in the case of the Cloud Software) via the Supplier’s Software platform available at www.auditcomply.com using the Customer Equipment, or to Users (in the case of the App) using the Customer Equipment.
User Licence means a licence granted to a User.
Unused Portion means, in respect of any period for which the Customer has made a payment in advance, the proportion which the number of days following termination of this agreement until the end of such period bears to the total number of days in that period.
User Licence means a licence granted to an ordinary User.
User Subscriptions means the subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services and its ancillary documentation in accordance with this agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. References to clauses and schedules are to the clauses and schedules of this agreement.
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 Any reference to this agreement includes these terms and conditions, any written quotation provided by the Supplier and any other terms agreed in writing between the Supplier and the Customer from time to time. Any written quotation provided by the Supplier takes precedence over these terms and conditions in the event of any inconsistency or conflict, andthis agreement shall take precedence over any other documents not expressly incorporated herein (including any terms and conditions produced or referred to by the Customer from time to time).
1.6 The Supplier shall be free to amend these terms and conditions , from time to time during the Term and subject to clause 13.3, giving notice to the Customer.
2. USER SUBSCRIPTIONS
2.1 Subject to payment and the other restrictions set out in this agreement, the Supplier hereby grants to the Customer, subject to the Licence Restrictions, including the restrictions applicable to the Licence Type each Authorised User has been granted, and subject to the EULA applicable to each Authorised User, a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term of the User Subscriptions for such Authorised Users solely for the Purpose.
2.2 In relation to the Authorised Users, the Customer undertakes that: (a) it shall be responsible for compliance by Authorised Users with the terms of this agreement and the EULA, and that the restrictions on the Customer set out within this agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users shall not exceed the number of User Licenses the Customer has purchased from time to time (c) 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 its documentation; (d) each Authorised User shall keep a secure password for his use of the Services and its documentation, and that each Authorised User shall keep his password confidential; (e) it shall permit the Supplier to audit the Services in order to establish the name of each Authorised User. Such audit may be conducted no more than once per quarter, and with reasonable prior notice; (f) if any of the audits referred to in clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to any other right to which it may be entitled, the Customer shall pay to the Supplier an amount equal to such underpayment (as calculated by reference to the Subscription Fees for additional Authorised Users) within 30 Days of the date of the relevant audit; and (g) if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.
2.3 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of their use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not: (a) other than as permitted by law, 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 its documentation (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Services in order to build a product or service which competes with the Services; or (c) use the Services to provide services to third parties; or (d) subject to clause 14.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or (f) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or (g) attempt to gain unauthorised access to the Services or their related systems or networks.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or its documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.7 The Customer must ensure that its use of the Services and all Customer Data is at all times compliant with the terms of this agreement, all applicable laws and regulations including Data Protection Law (nationally and internationally) and the Customer represents and warrants that: (i) it has obtained all necessary rights, releases and permissions to provide all the Customer Data to the Supplier and to grant the rights granted to the Supplier in this agreement and (ii) the Customer Data and its transfer to and use by the Supplier as authorized by the Customer under this agreement do not violate any laws (including without limitation those relating to export control, the principle of demonstrable “consent” under Data Protection Law, specifically Article 7 of the GDPR) and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than the Supplier security obligations under clause 9.3, the Customer shall be responsible for Customer Data and the consequences of determining the purpose and manner in which the Customer Data is to be processed, used, disclosed.
3. ADDITIONAL USER SUBSCRIPTIONS
3.1 Subject to clause 3.2, the Customer may, from time to time during the Subscription Term, purchase additional User Subscriptions.
3.2 The Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall supply, during the Subscription Term the Support and the Services to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall procure hosting of the Software from its hosting sub-contractor and make the Services available to the Customer in accordance with the terms imposed upon it by its hosting sub-contractor from time to time, a copy of which will be provided to the Customer upon request. The Supplier warrants that the Customer’s use of the Services in accordance with the terms of this agreement will not cause the Supplier to infringe its sub-contractor’s terms. The Supplier shall use reasonable endeavours to inform the Customer in advance of any planned service interruption.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer other than the Subscription Fees, provide the Customer with the Support in accordance with the Supplier’s support services policy in effect at the time that the Services are provided, subject to fair usage of the Support by the Customer. The Supplier may, from time to time at its discretion, generally upgrade and improve the Software as it sees fit and the Customer acknowledges that such upgrades and improvements may affect its use of the Services. Any specific upgrades requested by the Customer are chargeable by the Supplier.
4.4 There may be storage limits associated with particular Services, which are generally subject to fair usage limits. The Supplier reserves the right to charge for additional storage or overage fees at the rates specified by the Supplier to the Customer from time to time, either on the Supplier’s website or otherwise. The Supplier may impose new, or may modify existing, storage limits for the hosted Services at any time in the Supplier’s discretion, giving notice to the Customer, either on the Supplier’s website or otherwise.
5. SUPPLIER’S OBLIGATIONS
5.1 The Supplier undertakes that the Services will be performed to the standard reasonably expected of a highly skilled person engaged in the same type of business as the Supplier. If 3rd parties are contracted to provide any element of the service(s) the supplier will provide assurances that their work will be warrantied under this contract.
5.2 The undertaking at clause 5.1 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 (and in any case within 4 weeks from point of non-conformance), or provide the Customer with an alternative means of accomplishing the desired performance. Without prejudice to any remedy that the Customer may have for breach of this clause 5.2 (for the avoidance of doubt), such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, the Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, nor that the Services and/or documentation will meet the Customer’s Requirements.
5.3 The Customer acknowledges that it has assessed the suitability of the Services for its requirements. The Supplier does not warrant that any use will be uninterrupted or error free. The undertaking in this clause 5 shall not apply if the Customer makes or causes to be made any modifications to the Software or Services without the Supplier’s consent or the Software is used in combination with any software, hardware or materials not supplied by the Supplier or approved in writing by the Supplier or the Software or Services are used in an application for which they were not intended or the Software or Services are used otherwise than as permitted by this agreement.
5.4 This agreement shall not prevent the Supplier from entering into similar agreements with selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5.5 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.
6. CUSTOMER’S OBLIGATIONS
The Customer shall: (a) at its cost, provide the Supplier with all necessary co-operation in relation to this agreement, and all necessary data and access to information as may be required by the Supplier, its agents or contractors, in order to render the Services, including but not limited to applicable specifications, data management decisions, approvals, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under this agreement; (c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any breach of this agreement by either; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment; (h) provide a single main point of contact who can address questions or issues relating to the Services, provide timely feedback and review any changes to the Services; and (i) be solely responsible at its own cost for generating Customer Data, content and data required to utilise the services and uploading all such content and data to the site provided to the Customer using the Services. In the event that the Customer requires any assistance from the Supplier in this regard, the Supplier may provide such assistance as it deems appropriate at its then prevailing charges.
7. THIRD PARTY LICENCE TERMS
7.1 The Software and Services also utilise third party software which is subject to certain third party licence terms. Accordingly the following terms and conditions shall apply to the Customer’s and the Authorised Users’ use of the Software and Services in addition to the provisions set out elsewhere in this agreement, as well as any other relevant third party licence terms which may apply from time to time: Highcharts: http://shop.highsoft.com/media/highsoft/Standard-License-Agreement-6.0.pdf; and iOS SDK: https://www.apple.com/legal/sla/docs/xcode.pdf. The Supplier warrants that it has procured permission for the use by the Customer of such third party software, and that the Customer will continue to be entitled to use such software during the Term provided that it complies: (a) with the terms of this agreement; and (b) with any reasonable directions given to it by the Supplier from time to time.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees (and any Service Charges, or other charges specified or agreed) to the Supplier in accordance with the Payment Terms. The Customer shall be required to pay the Subscription Fees in advance, in line with the agreed payment schedule before any User Licences are renewed. Any bespoke Service Charges will be invoiced as and when the services are performed, and such invoices are payable within 30 days, unless otherwise agreed in writing by the Supplier.
8.2 If the Supplier has not received payment for any Subscription Fees in advance, and any Service Charges within 30 days after the due date, then, save where the parties are engaged in a bona fide dispute as to the amount payable, without prejudice to any other rights and remedies of the Supplier: (a) the Supplier may, without liability to the Customer, disable the Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at annual rate equal to 4% over the then current base lending rate of Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.3 All amounts and fees stated or referred to in this agreement: (a) shall be payable in pounds sterling; (b) are, subject to clause 13.5(a), non-cancellable and non-refundable; (c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
8.4 If, at any time whilst using the Services, the Customer exceeds the Licence Restrictions, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then prevailing charges for such excessive use.
8.5 The Supplier shall at the start of each Renewal Period having given at least 90 days’ prior notice to the Customer be entitled to increase the Subscription Fees and the fees payable in respect of the [additional] User Subscriptions purchased and the Subscription Fees set out in the Commercial Terms shall be deemed to have been amended accordingly. The Supplier reserves the right to apply annual increases to the Subscription and Services Fees in line with increases in the Retail Prices Index or such other index or equivalent value as may replace it from time to time
8.6 Bespoke upgrades may be undertaken on request, subject to confirmation by Supplier, and are charged for by the Supplier at its then prevailing standard daily rate. Any on-site support required by the Customer and agreed by the Supplier will be chargeable at the Supplier’s then prevailing standard daily rates.
9. PROPRIETARY RIGHTS AND DATA
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, Software and its documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights,database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software and its documentation.
9.2 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and the means by which it acquired such Customer Data.
9.3 The Supplier shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. However, the Customer understands and acknowledges that use of the hosted Services necessarily involves transmission of the Customer Data over networks that are not owned, operated or controlled by the Supplier, and that the Supplier cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. The Supplier does not guarantee that its security procedures will be error-free, that transmissions of the Customer Data will always be secure or that unauthorized third parties will never be able to defeat the Supplier’s security measures or those of the Supplier’s third party service providers.
9.4 The Supplier shall not modify Customer Data, disclose Customer Data or access Customer Data except: (a) as required by law; (b) as expressly permitted by the Customer; (c) to provide the Services; (d) to address technical problems or issues with the Services; or (e) at the Customer’s request when providing Support.
9.5 The Supplier shall use its reasonable commercial endeavours to back-up all Customer Data on a daily basis. In relation to images comprised in the Customer Data, the Supplier shall use its reasonable commercial endeavours to procure from its hosting provider back-up of such images in accordance with its hosting provider’s terms for provision of back-up services from time to time. Without prejudice (for the avoidance of doubt) to any remedy that the Customer may have in respect of any loss of or damage to personal data (as defined in Data Protection Law), in the event of any loss of or damage to Customer Data, the Customer’s primary remedy shall be for the Supplier to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier (or its hosting provider, as appropriate according to the nature of the Customer Data which has been lost or damaged).
9.6 Both parties will comply with all applicable requirements of the Data Protection Law. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Law.
9.7 The parties acknowledge that for the purposes of the Data Protection Law, in relation to any Personal Data comprised within the Customer Data (the Customer Personal Data), the Customer is the data controller and Supplier is the data processor (where data controller and data processor have the meanings given in relevant Data Protection Law). Such Personal Data shall only be processed by Supplier in accordance with the Customer’s written instructions or as reasonably necessary to fulfil the contract and exercise Supplier’s rights and obligations hereunder.
9.9 Supplier shall, in relation to any Customer Personal Data: (a) process that Customer Personal Data only on the written instructions of the Customer unless Supplier is required by Data Protection Law to otherwise process that Customer Personal Data. Where Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Customer Personal Data, Supplier shall promptly notify the Customer of this before performing the processing required by the Data Protection Law unless those Data Protection Law prohibit Supplier from so notifying the Customer; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer 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; (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential; (d) not transfer any Customer Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: (i) the Customer or Supplier has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) Supplier complies with its obligations under the Data Protection Law by providing an adequate level of protection to any Customer Personal Data that is transferred; and (iv) Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Customer Personal Data; (e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify the Customer without undue delay on becoming aware of a Personal Data breach; (g) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Customer Personal Data; and (h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
9.10 The Customer consents to Supplier appointing Amazon Web Services, or such other hosting services provider notified to the Customer from time to time by Supplier, as third-party processors of any Personal Data processed by Supplier under this agreement. Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and Supplier, Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit any third party to do so) other than as strictly necessary for the performance of its rights and obligations under this agreement. The provisions of this clause shall not apply to any information which: (a) is or comes into the public domain without breach of this agreement; or (b) was in the possession of the receiving party prior to receipt from the disclosing party without an obligation of confidence; or (c) was obtained from a third party free to divulge such information; or (d) is required to be disclosed by law or by any legal, regulatory or administrative body.
11.1 The Customer shall, subject to the other provisions of this clause 11 and the limitations in clause 12, 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 its and/or the Authorised Users’ use of the Services including, without limitation, for any liability, damages, costs or claims incurred by the Supplier due to the Customer’s use of the Services for any purpose outside of the Purpose or any claim relating to Customer Data, including, without limitation, any claim brought by a third party alleging that Customer Data, or the Customer’s use of the Services in breach of this agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law, provided that: (a) the Customer is given prompt notice of any such claim; (b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (c) the Customer is given sole authority to defend or settle the claim.
11.2 In no event shall the Customer, its employees and agents be liable to the Supplier under clause 11.1 to the extent that the alleged infringement is based on: (a) a modification of the Customer Data by anyone other than the Customer or Customer’s authorised agents or (b) the Supplier’s use of the Customer Data in a manner contrary to the instructions given to the Supplier by the Customer or Customer’s authorised agents; or (c) the Supplier’s use of the Customer Data after notice of the alleged or actual infringement from the Customer or any appropriate authority.
11.3 The Supplier shall, subject to the other provisions of this clause 11 and the limitations in clause 12, defend, indemnify and hold harmless the Customer 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 any claim that the Services infringe any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality or violate applicable law provided that: (a) the Supplier is given prompt notice of any such claim; (b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and (c) the Supplier is given sole authority to defend or settle the claim.
11.4 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, either party may terminate this agreement without, subject to clause 13.5, any additional liability or obligation to pay liquidated damages or other additional costs to the other party.
11.5 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer under clause 11.3 to the extent that the alleged infringement is based on: (a) a modification of the Services by anyone other than the Supplier or Supplier’s authorised contractors or agents or (b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier or Supplier’s authorised contractors or agents; or (c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.6 The foregoing states each party’s sole and exclusive rights and remedies, and each party’s (including its employees’, agents’ and, in the case of the Supplier, sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 This clause 12 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of: (a) any breach of this agreement (including without limitation, any claim under clause 11.1 or clause 11.3); (b) any use made by the Customer of the Software, Support or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement: (a) 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; (b) the Services and all other services provided, procured and/or sub-contracted by the Supplier under this agreement, are provided to the Customer on an “as is” basis; and (c) the Customer assumes sole responsibility for results obtained from the use of the Services and its associated documentation by the Customer and Authorised Users, 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 data provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction.
12.3 Nothing in this agreement excludes the liability of either party: (a) for death or personal injury caused by such party’s negligence; or (b) for fraud or fraudulent misrepresentation. Subject to the foregoing: a) neither party shall 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 (b) disregarding the Customer’s liability to pay Subscription Fees and Service Charges and the liability of either party for breach of Data Protection Law or the Supplemental GDPR Clauses, each party’s total aggregate liability in contract, 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 an amount equal the annual Subscription Fees payable for the 12 month period in which the claim arose.
13. TERM AND TERMINATION
13.1 This agreement shall commence on the Commencement Date, or the date the written quotation provided by the Supplier is signed by both parties, whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Subscription Term.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; (c) the other party ceases, or threatens to cease, to trade; or (d) the other party undergoes a change in control (as defined in section 1124 of the Corporation Tax Act 2010).
13.3 The Customer shall be entitled to terminate this agreement by 20 Business Days’ notice to the Supplier in writing (including by email) following notice by the Supplier of an amendment to these terms and conditions in accordance with clause 1.6.
13.4 The Subscription Term shall automatically renew over each Renewal Period unless and until either party gives notice to the other in writing (including by email) that it does not wish this agreement to continue beyond the Initial Subscription Term or the then current Renewal Period, such notice to expire no later than 90 days prior to the end of the Initial Subscription Term or then current Renewal Period.
13.5 On expiry or termination of this agreement for any reason: (a) if the Customer terminates in accordance with clause 13.3 or either party terminates in accordance with clause 11.4, the Supplier shall within 20 Business Days reimburse to the Customer the Unused Portion of any Subscription Fees or other charges paid by the Customer; (b) all licences granted under this agreement shall immediately terminate, even if the Initial Subscription Term or Subscription Term is defined as “perpetual” in, or if no expiration date is specified in, the written quotation provided by the Supplier; (c) each party shall return and make no further use of any Confidential Information belonging to the other party; and (d) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 9, 10, 11.1, 12, 13.4 and 14) or implicitly surviving termination, shall not be affected or prejudiced; and (e) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than 30 days after the effective date of 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 will use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of receipt of such a 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.
14.1 The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, provided that the Customer is notified of such an event and its expected duration.
14.2 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
14.4 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.5 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
14.6 Neither party shall, without the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.”
14.7 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).
14.8 Notwithstanding any other provisions of this Agreement, nothing in this Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it.
14.9 Any notice required or permitted to be given under this agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified in this agreement or such other address as either party may notify in writing to the other from time to time for this purpose. Any notice shall be treated as having been served on delivery if delivered by hand, 4 Business Days after posting if sent by pre-paid first class post, and on completion of transmission if sent by facsimile (subject to receipt of acknowledgement of successful transmission).
14.10 The construction, validity and performance of this agreement shall be governed by the laws of the United Kingdom, and the parties submit to the exclusive jurisdiction of the courts of Northern Ireland.
14.11 This agreement may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be sufficient to bind the parties to the terms and conditions of this agreement.
14.12 No variation of this agreement shall be effective unless it is in writing and signed by authorised representatives of each of the parties.
15. HEALTH AND SAFETY
15.1 The Supplier shall at all times during the Contract Period comply with the requirement of the Health and Safety at Work Act 1974 and any other relevant act, order pertaining to the health and safety of employees and others who may be affected by the Company’s acts or omissions in providing the Services under this Contract and shall require that any sub-Contractor may likewise comply.
15.2 The Customer shall promptly notify the Supplier of any health and safety hazards which may exist or arise at Customer’s premises and which may affect the Supplier in the performance of the Contract
15.3 The Supplier shall notify the Customer’s Contract Manager immediately in the event of any incident or “near miss” occurring in the performance of the Contract on UKAS premises where that incident or “near miss” causes, or may cause, any personal injury or AuditComply Direct damage to property which could give rise to personal injury. Incidents shall be recorded using UKAS’s incident reporting form. In addition, the Supplier will record the incident in their own accidents book.
16. FAIR WORK PRACTICES
16.1 In addition to the requirements relating to the Health and Safety at Work Act the Supplier shall at all time during the Contract period comply with Fair Working Practices which as a minimum will mean that the Supplier is committed to:
● Ensuring reasonable staffing levels and workloads for employees
● Promoting respect for employees in the workplace and facilitate appropriate grievance and dispute resolution OF workplace issues.
17.1 During the Term and for 12 months thereafter, neither party, directly or indirectly, will solicit for employment or for engagement as an independent contractor, or encourage leaving its employment or engagement, any employee or independent contractor of the other party known to the soliciting party solely through this Agreement or any Attachment hereunder. For the avoidance of doubt, general public advertisements for employment or engagement and any individual’s response thereto will not be deemed a violation of this Section. Any breach of this Section would damage the other party in an amount difficult to ascertain with certainty; therefore, on any breach hereunder, the breaching party will pay to the other party an amount equal to the annual compensation (with the non-breaching party) of the applicable employee or independent contractor.