Last updated 05/01/2022.
1. Provision of the Services
1.1. The Software Services are provided by Coda Commerce Limited. (“We”, “Our”, “Us” “Coda”). We are registered in England and Wales under company number 03874501 and have our registered office at Osbourne House, 143-145 Stanwell Road, Ashford, Middlesex, TW15 3QN.
1.2. “You” are the customer of these Software Services and are as specified in the Order.
1.3. We offer the Software Services to you on these terms.
1.4. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE accessed via the application portal as they represent a binding legal agreement and you will be bound by them. A copy of these terms can be downloaded [INSERT LINK HERE.]
1.5. THESE TERMS OF SERVICE APPLY TO ALL USE OF THE SOFTWARE (INCLUDING PURCHASING THROUGH THE APPLICATION PORTAL.) BY CONTINUING TO USE THE SOFTWARE YOU ARE INDICATING YOUR ACCEPTANCE OF THE TERMS OF SERVICE.
1.6. Use of the Software includes accessing it, perusing it, linking to it, copying any of the content on it or using any of the functionality offered via it. If you do not agree to these terms and conditions of service, you must not use the Software.
1.7. You are also responsible for ensuring that all persons who access our Software through your internet connection are aware of these terms of use and other applicable terms and conditions, and that they comply with them. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF SERVICE, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE
2. Other Applicable Terms & Policies
2.1. The following additional terms also apply to your use of the Software:
2.1.1. Our Privacy Policy, which sets out the terms on which we process any personal data we collect from you, or that you provide to us.
3. Definitions and construction
3.1. In this Agreement the following expressions shall apply (save where the context otherwise requires):
“Affiliate” means each and any Subsidiary or Holding Company of a party and each and any Subsidiary of a Holding Company of a party.
“Commencement Date” means the date we confirm acceptance of your offer to procure Services.
“Data Controller” shall have the meaning of ‘data controller’ set out in Article 4(7) of the UK GDPR.
“Data Processor” shall have the meaning of ‘data processor’ set out in Article 4(8) of the UK GDPR.
“Data Protection Legislation” means, for such time as they are in force in England and Wales, the DPA, the UK GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.
“DPA” means the Data Protection Act 2018.
“Downtime” means a period during Service Hours during which there is total loss of the Services.
“Extension Period” means a period of one calendar year commencing at the end of the Initial Period or at the end of the previous Extension Period.
“Fee” means the fee payable in respect of a particular Tier of Service, as specified in the pricing table set out in the Order and as it may be amended from time to time.
“Initial Period” means a period of one calendar year commencing on the Commencement Date.
“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
“Month” means a calendar month and “monthly” shall be construed accordingly.
“Order” means the document detailing your order for Services, and which contains various commercial details relating to the same.
“Outage” means an instance of Downtime.
“Personal Data” has the meaning set out in Article 4(1) of the UK GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
“Planned Downtime” means a period during Service Hours during which there is total loss of the Services but such loss was expected and/or is due to causes known to us or action taken by us.
“Processing” and “Process” have the meaning set out in Article 4(2) of the UK GDPR.
“Service Interruption” means a period during Service Hours during which there is partial loss of the Services.
“Service Levels” means, where applicable, the levels of performance to which the Services are to be provided to you by us; which where applicable shall be identified and described on the Order.
“Services” means the services provided by us to you under the terms of this Agreement, as determined by reference to the Tier, or Tiers, of service selected and paid for by you.
“Software” means the software used by us to provide the Services which is either our proprietary software or third party software licensed to us.
“Subscription” means an order placed for the Services by you detailed in the Order and accepted by us.
“System Management
Regulations” means regulations introduced by us from time to time for the better management of the Services and which may include (but are not limited to):
(i) Defining minimum specifications for equipment used by you to interface with the Services (including, but not limited to, routers, firewalls and PCs);
(ii) regulations to ensure that the network through which the Services are provided is not overloaded and that the security and integrity of the network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by us in connection with the Services; and
(iii) regulations to ensure that any database or other applications which form part of the Services are used to the best effect and within their capacities.
“Tier” means a package of services selected by you at the outset of a Subscription, which will determine the recurring Fee to be paid for that Subscription and the quantity and type of Services which you are entitled to receive during it.
“Term” means the effective term of this Agreement (which shall include the Initial Period and all subsequent Extension Periods).
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018
“Uptime” shall have the meaning set out in clause 7.2
“Your Business Data” means all data processed by us or otherwise provided to us pursuant hereto including, but not limited to, any Personal Data
3.2. The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
3.3. Unless the context otherwise so requires:
3.3.1. references to you and us include our permitted successors and assigns;
3.3.2. references to statutory provisions include those statutory provisions as amended or re-enacted;
3.3.3. references to any gender include all genders;
3.3.4. words in the singular include the plural and in the plural include the singular; and
3.3.5. references to writing or in writing shall include email.
3.4. Holding company shall be construed in accordance with section 1159 of the Companies Act 2006.
3.5. Subsidiary shall be construed in accordance with section 1159 of the Companies Act 2006.
4. Provision of Services and Licences
4.1. Your Order constitutes an offer by you to purchase Services from us on the terms of, and in accordance with, this Agreement. No other terms or conditions that you seek to apply by annexation to the Order, in writing or otherwise shall apply to this Agreement.
4.2. In consideration of your timely payment of the Fee, we agree, with effect from the Commencement Date, to supply the Services and licence the Software to you on a non-exclusive basis pursuant to the terms and conditions of this Agreement.
4.3. You agree to receive the Software as a service and accordingly your licence to use the Software is subject to the following conditions:
4.3.1. Non-Exclusivity: the licence is non-exclusive and we shall remain entitled to grant similar or identical licences to use the Software to any third parties without restriction;
4.3.2. Transferability: the licence is non-transferable or sub-licensable, and you shall not permit or purport to transfer the licence to any third party (nor offer the Software on a bureau basis) without first obtaining our explicit written permission from us to do so and in full knowledge that further fees shall be negotiated by us and payable by you before such consent is provided;
4.3.3. Purpose: the Software may only be used by you for internal business operations, save where a subscription Tier specifically permits the use of the Software for providing services to third parties;
4.3.4. Duration: the licence shall enure for the full Term of this Agreement, after which your right to use or have access to the Software shall end.
4.4. You acknowledge that we may at any time, and without notice, incorporate licence management software into the Software for the purposes of ensuring that licence rights are not exceeded.
4.5. You accept that you shall in no circumstances be permitted to:
4.5.1. reproduce, edit, create derivative works of, sell or in any way commercially exploit any part or aspect of the Software;
4.5.2. outsource the Services or Software provided under this Agreement to third parties;
4.5.3. attempt to obtain, or assist third parties in obtaining access to the Software and Services
4.5.4. attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the Software (including any underlying software or any part of it) that is used to provide the Services, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and
4.5.5. to observe, study or test the functioning of the Software (including any underlying software or any part of it) that is used to provide the Services, except and only to the extent that such restriction is prohibited pursuant to section 50BA of the Copyright, Designs and Patents Act 1988.
5. Duration
5.1. This Agreement shall commence on the Commencement Date and shall continue for the Initial Period and thereafter for any Extension Periods invoked pursuant to Clause 5.2 unless and until terminated by either party in accordance with Clause 17 below.
5.2. This Agreement shall automatically be extended for an Extension Period at the conclusion of the Initial Period and at the conclusion of each subsequent Extension Period thereafter until terminated in accordance with Clause 5.1 or 17.
5.3. Access to the Services may not commence on the Commencement Date, and we shall be entitled to suspend access to the Services until we are satisfied that we have received payment of the Fee or alternative arrangements for payment of the Fee have been agreed.
6. Fee
6.1. You undertake to pay the applicable Fee for the Services, which (unless otherwise negotiated) shall be payable monthly in advance. Payment shall be made by you using direct debit or a similar method, and may be scheduled to be taken from you automatically at regular intervals or upon presentation of a valid invoice. You shall pay invoices within 30 days of issue.
6.2. The Fee payable by you will be determined by reference to the Tier of service to which you have Subscribed. For the avoidance of doubt, you may subscribe to multiple service Tiers in respect of the various modules of the Service.
6.3. You may, at any time, upgrade your current service Tier, or purchase Subscriptions to additional Tiers of service.
6.4. All amounts and Fees stated or referred to in this Agreement shall be payable in GBP and are non-cancellable and non-refundable;
6.5. We shall be entitled to charge you interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) on a daily basis at the rate of four (4) per cent per annum above the base rate from time to time of Barclays Bank plc or at the maximum rate permitted by statute from the due date therefor until payment.
6.6. Where this Agreement would be extended by virtue of Clause 5.2 then you shall be obliged to make payment of the Fee prior to any such extension commencing.
6.7. We shall be entitled to increase the Fee from time to time by publishing details of the updated Fee. Such increases shall take effect immediately and shall be payable by you on the anniversary of the Commencement Date.
6.8. All sums due under this Agreement are expressed exclusive of VAT but will be subject to VAT at the prevailing rate and where applicable and which will be payable by you.
6.9. Where we provide any other services to you which are not included in the Fee, such as consultancy, configuration, customisation or data services we shall be entitled to invoice you in arrears such charges based on our then current charging rates, or as otherwise agreed between from time to time.
7. Service Levels
7.1. Where a Tier entitles you to receive the Service subject to a specified Service Level, we shall use our commercially reasonable endeavours to deliver the relevant Services to the levels of performance specified in the applicable Service Level; subject always to Clauses 16.7 and 18 and save where otherwise expressly provided for by this Agreement.
7.2. Where applicable and eligible, we shall provide you with technical support in accordance with the Service Level. Uptime shall be calculated as Downtime less Planned Downtime as a percentage of the Service Hours. A Service Level represents a target uptime only.
8. Outages, Service Interruptions and Changes to Services
8.1. Outages or Service Interruptions may occur when in our reasonable opinion they are necessary to facilitate improvements to, or to maintain the Services. We will use reasonable endeavours to minimise the duration of such Outages or Service Interruptions that we deem necessary.
8.2. If Outages or Service Interruptions are required pursuant to Clause 8.1, we will endeavour to schedule them so as to minimise impact on the Services and to notify you as far in advance as is practicable of the anticipated commencement time and estimated duration of the relevant Outage or Service Interruption.
8.3. Customer requests likely to cause Outages or Services Interruptions will be duly considered in light of the impact on all customers and performed entirely at our discretion. An Outage or Service Interruption caused at your request will not be considered a break in service, and will not be a factor when calculating our performance in relation to Service Levels or for any other purpose or give rise to any liability on our part.
8.4. Save for where an applicable Service Level specifically provides otherwise, the occurrence of Outages or Service Interruptions shall not constitute a breach of this Agreement.
9. Warranties
9.1. We warrant to and undertake with you that:
9.1.1. we will use our reasonable efforts to provide the Services and to exercise reasonable care and skill when providing the Services in accordance with the terms of this Agreement;
9.1.2. we have full right power and authority to provide the Services to you in accordance with the terms of this Agreement;
9.1.3. we have all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term; and
9.1.4. we will at all times comply with the Data Protection Legislation.
9.2. For the avoidance of doubt, we make no warranty that use of the Service will guarantee or enable compliance with any particular laws, regulations or codes of conduct. Your compliance with any legal requirements to which you may be subject is entirely your own responsibility and we shall have no liability or responsibility in respect of the same.
9.3. We make no representation or warranty that any information provided by or contained within the Services or Software shall be accurate, complete or up-to-date and you shall be responsible for verifying any such information on which you may choose to rely.
9.4. We shall follow our archiving procedures for Your Business Data. In the event of any loss or damage to Your Business Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore Your Business Data from the latest back-up maintained by us in accordance with our archiving procedure available upon request. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Business Data caused by any third party (except those third parties sub-contracted by us to perform services related to the maintenance and back-up of Your Business Data for which we shall remain fully liable.)
9.5. You acknowledge that the Services may enable or assist you to access the content of, correspond with, and procure products and services from, third parties via third-party applications and software and that you do so solely at your own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party applications and software, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party application and/or software provider is between you and the relevant third party.
9.6. Except for the express warranties set forth in this Clause 9, the Services are provided on an “as is” basis, and your use of the Services is at your own risk. We do not make, and hereby disclaim, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. We do not warrant that the Software or Services will be uninterrupted, error-free, or completely secure.
9.7. We do not and cannot control the rate of flow of data to or from our network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although we will use commercially reasonable efforts to take actions we deem appropriate to remedy and avoid such events, we cannot guarantee that such events will not occur. Accordingly, we disclaim any and all liability resulting from or related to such events.
10. Your Obligations and Warranties
10.1. You undertake at all times during the Term to comply with all current System Management Regulations. We shall give not less than 14 days’ written notice to you of additions and changes to System Management Regulations.
10.2. You shall use the Software and Services fairly and not exceed any limit that we may (acting reasonably and in good faith) apply. Any such restrictions on the use of the Software or Services shall be published in the System Management Regulations from time-to-time or separately notified to you in writing.
10.3. You shall provide us with:
10.3.1. all necessary co-operation in relation to this Agreement; and
10.3.2. all necessary access to such information as may be required by us;
in order to provide the Services, including but not limited to Your Business Data, security access information and configuration services;
10.4. In the event that you are in breach of any of your obligations (including, for the avoidance of doubt, timely payment of the Fee) under this Agreement, then:-
10.4.1. we cannot be held responsible should the Services fail to perform and comply with the Service Levels as a result (directly or indirectly) of your breach;
10.4.2. we shall be entitled to charge you for staff time engaged on rectifying any resulting problems at our then current standard charging rates; and
10.4.3. we may without any liability terminate or suspend the Services (including, for the avoidance of doubt, by way of restricting or blocking your access to the Software) without prejudice to any other pre-existing rights and obligations of either party.
10.5. You represent, warrant and undertake that:
10.5.1. you will use the Services only for lawful purposes and in accordance with this Agreement;
10.5.2. you will at all times comply with Data Protection Legislation;
10.5.3. any Personal Data will only be provided to us in accordance with Data Protection Legislation;
10.5.4. you will be solely responsible for the accuracy and submission of Your Business Data when using the Services and we will not be liable for failing to ensure the accuracy of any Your Business Data; and
10.5.5. any software, data, equipment or other materials provided by you to us or employed by you in your use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or Personal Data interests of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.
10.6. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, we will have the right to suspend immediately any related Services if deemed reasonably necessary by us to protect our proper interests or our other customers. If practicable and depending on the nature of the breach, we may (in its absolute discretion) give you an opportunity to cure such breach. In such case once you have cured the breach, we will promptly restore the Services.
11. Intellectual Property Rights
11.1. Without prejudice to your rights in your own materials and Your Business Data, we jointly agree that you shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by us in connection with or related to the provision of the Services hereunder.
11.2. We warrant that we have all necessary right, title and interest to enable you to benefit from the Services in accordance with this Agreement.
11.3. You hereby grant to us a non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate Your Business Data provided by you or resulting from the Services for the provision of the Services to you;
12. Confidentiality and Ownership of Data
12.1. Subject to Clause 12.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (Confidential Information).
12.2. We hereby undertake not to disclose without your written consent Your Business Data in whole or in part to any other person save those of our employees agents and sub-contractors involved in the provision of the Services and who have, and to the extent that they have, a need to know the same; and
12.3. The provisions of Clause 12.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
12.3.1. trivial or obvious;
12.3.2. already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;
12.3.3. in the public domain other than as a result of a breach of this clause; or
12.3.4. to the extent that disclosure of such information may be required by any Court, lawful authority, governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.
12.4. For the avoidance of doubt, Your Business Data shall remain at all times your exclusive property and may only be used by Provider in order to fulfil its obligations pursuant hereto.
12.5. We reserve the right to use all or part of any program, services or materials produced for or acquired on your behalf for demonstrating our expertise to potential clients, subject always to the provisions of this Clause 12.
12.6. The provisions of Clause 12 shall remain in full force and effect notwithstanding any termination of this Agreement.
13. Data Protection
13.1. We jointly agree that the provision of the Services by us on your behalf characterises us as a Data Processor for the purposes of the UK GDPR.
13.2. We jointly agree that for the purposes of Data Protection Legislation that you shall be the Data Controller and we shall be the Data Processor in respect of any Personal Data which is transferred from you to us in accordance with this Agreement.
13.2.1. We shall Process the Personal Data only to the extent necessary to perform our obligations pursuant to this Agreement and/or in accordance with your instructions from time to time, and shall not Process the Personal Data for any other purpose other than enabling us to fulfil our obligations pursuant to this Agreement or to perform any other activity which may be authorised by you from time to time.
13.2.2. having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, we will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against accidental loss or destruction;
13.2.3. we will not transfer Personal Data outside the UK unless it is necessary to provide the Services (for example where the Data Controller’s other appointed data processor is located outside the UK) and then only on your express instructions without ensuring that appropriate safeguards are in place and that any transfer is lawful under all applicable Data Protection Legislation;
13.2.4. we will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the UK GDPR, subject to the Data Controller reimbursing us for the cost of the same;
13.2.5. we will notify and assist the Data Controller, insofar as reasonably possible, in relation to any relevant requests for the disclosure of Personal Data which may be made to us and which we consider that you are legally obliged to respond to, subject to the Data Controller reimbursing us for the cost of the same;
13.2.6. we shall report to the Data Controller any suspected data breach concerning the Personal Data which comes to our attention and we shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject to the Data Controller reimbursing it for the cost of the same; and
13.2.7. at the written instruction of the Data Controller securely delete or return Personal Data and copies thereof to the Data Controller on termination of this Agreement unless the law requires storage of the Personal Data.
14. Security
14.1. Each party recognises that it is impossible to maintain flawless security but (where relevant) we shall take all commercially reasonable steps to prevent security breaches in our servers’ interaction with you and security breaches in any interaction with third parties outside of any firewall that may be built into our Services.
14.2. You are responsible for maintaining the confidentiality of any passwords which are required to access the Software and the Services and are solely responsible for any damage caused by any unauthorised access which arises from your failure to do so.
15. Indemnity
15.1. You shall defend, indemnify and hold us harmless 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 your use of the Services or a breach of this Agreement (including without limitation a breach of the Data Protection Legislation or an alleged breach of third party Intellectual Property Rights.)
16. Limitation of Liability
16.1. Except as expressly and specifically provided in this agreement:
16.2. you assume sole responsibility for results obtained from the use of the Services and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in Your Business Data or any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction
16.3. Except as expressly stated in Clause 16.4:
16.3.1. we shall not be liable for any indirect or consequential loss or damage suffered by you, irrespective of how such loss or damage may arise and no matter which theory of liability gives rise to any cause of action by you.
16.3.2. we shall have no liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
16.3.2.1. special damage, even though we were aware of the circumstances in which such special damage could arise;
16.3.2.2. loss of profits;
16.3.2.3. loss of anticipated savings;
16.3.2.4. loss of business opportunity;
16.3.2.5. loss of goodwill; or
16.3.2.6. loss of or damage to data.
16.3.3. to the extent that not excluded by Clauses 16.3.2, 16.5, 16.6, 16.7 or otherwise, our total aggregate liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fee actually paid by you during the Initial Period or, where the Initial Period has elapsed, during the 12 month period immediately prior to the first event which gave rise to your right to bring a claim against us.
16.3.4. you agree that, in entering into this Agreement, you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if you did rely on any representations, whether written or oral, not expressly set out in this Agreement) that you shall have no remedy in respect of such representations and (in either case) we shall have no liability otherwise than pursuant to the express terms of this Agreement;
16.4. The exclusions in Clause 16.1 shall apply to the fullest extent permissible at law but we do not exclude liability for:
16.4.1. death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;
16.4.2. fraud or fraudulent misrepresentation; or
16.4.3. any other liability which cannot be excluded by law.
16.5. We shall not be liable for any loss or damage of whatsoever nature suffered by you arising out of or in connection with any act, omission, misrepresentation or error made by or on your behalf or arising from any cause beyond our reasonable control.
16.6. You accept that we are in no way liable for any virus or other contaminants which enter your email system or computer network.
16.7. We shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:-
16.7.1. interruptions to the flow of data to or from the Internet;
16.7.2. changes, updates or repairs to the network or the Software subject to us using commercially reasonable endeavours to minimise the interruptions / Outages that may be caused by such change;
16.7.3. the effects of the failure or interruption of services provided by third parties;
16.7.4. any of the factors set out in Clause 18;
16.7.5. any actions or omissions by you (including, without limitation, breach of your obligations set out in this Agreement) or any third parties;
16.7.6. problems with equipment owned by you and/or any third party equipment;
16.7.7. interruptions to the Services requested by you.
16.8. You agree that you are in a better position to foresee and evaluate any loss you may suffer in connection with this Agreement and that the Fee has been calculated on the basis of the limitations and exclusions in this Clause 15 and that you will put in place insurance as is suitable having regard to your particular circumstances and the terms of this Clause 15.
17. Termination
17.1. For the purposes of this Clause 17, the following events shall be deemed “acts of default”:
17.1.1. if you fail to pay any moneys due pursuant hereto within 7 days of the due date therefor;
17.1.2. if a party commits any material breach of any term of this Agreement (other than one falling under Clause 17.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
17.1.3. if a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
17.2. If you commit an act of default then we may forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement.
17.3. If either party commits an act of default, the other party may terminate this Agreement by notice in writing forthwith.
17.4. We shall have the right, without prejudice to our other rights or remedies, to terminate this Agreement immediately by notice to you:
17.4.1. if you undergo a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of yours;
17.4.2. if you sell all of your assets or are merged or re-organised in circumstances where you are not the surviving entity;
17.4.3. if we cease to offer the Services; or
17.4.4. if you dispute the ownership or validity of our Intellectual Property Rights.
17.5. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
17.6. In the event of termination of this Agreement:-
17.6.1. you agree promptly to pay to us all outstanding payments;
17.6.2. all licences granted under this agreement shall immediately terminate and you shall immediately cease all use of the Services;
17.6.3. We may in our sole discretion agree to provide any assistance reasonably requested by you in connection with the hand-over to a third party of any services provided by us hereunder, and you shall pay us in accordance with our then current standard rates for any such assistance;
17.6.4. we may in our sole discretion destroy or otherwise dispose of any of Your Business Data in our possession unless we receive, no later than ten days after the effective date of the termination of this agreement, a written request for delivery to you of the then most recent back-up of Your Business Data. We shall use reasonable commercial endeavours to deliver the back-up to the you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and you shall pay all reasonable expenses incurred by us in returning Your Business Data.
17.6.5. at our request, you shall return our Confidential Information.
17.7. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination. For the avoidance of doubt, termination of this Agreement shall not in any circumstances entitle you to any form of rebate or refund.
18. Force majeure
18.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute (except involving a party’s own employees), pandemic or epidemic, illness, flood, fire or tempest (an “Event of Force Majeure”). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
18.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
18.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre existing rights or obligations of either party.
19. Waiver
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
20. Notices
20.1. To us: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class recorded post to our registered office address or email from the Subbu Contact Us webpage: INSERT contact us link (such email notice to be confirmed by delivery or read receipt).
20.2. To you: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by email (such email notice to be confirmed by delivery or read receipt) to your email address used as login to the subscribed services.
21. Publicity
21.1. We are permitted to make announcements or information concerning this Agreement available in any advertising publicity promotional or other marketing activities without your prior written consent. For the avoidance of doubt, we are permitted to use your name, logo and any feedback you provide to the us.
21.2. You shall not make an announcement or disclose information concerning this Agreement or any ancillary matter in any advertising publicity promotion or other marketing activity without our prior written consent.
22. Costs
Except for the payments specifically agreed in this Agreement, each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
23. Invalidity and severability
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
24. Entire agreement
24.1. Subject to Clause 24.2, this written Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof. Nothing in this Clause 24.1 or Clause 16.3.4 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation.
24.2. No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
25. Relationship
The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
26. Successors
This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
27. Assignment
27.1. You shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without our prior written consent, such consent not to be unreasonably withheld.
27.2. We shall be entitled to assign this Agreement or all or any of its rights and obligations hereunder.
28. Sub contracting
We shall be entitled to sub contract the whole or any part of our obligations hereunder to any third party but shall remain liable as if we were performing the Services ourselves.
29. Governing Law & Jurisdiction
29.1. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
29.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
30. Third Party Rights
No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.