These Terms of Service, published by Humanloop Limited, a company incorporated and registered in England and Wales with company number 12495436 and registered address at Salisbury House, Station Road, Cambridge, United Kingdom, CB1 2LA (the "Supplier") govern the use of and access to our Services by you (the "Customer") and together with the Order Form shall hereafter be referred to as the "Agreement". Each of the Customer and the Supplier shall be a "Party" and together the "Parties".
By purchasing, accessing, or using the Services, the Customer acknowledges that Customer has read and understood the terms of the Agreement and agrees to be bound by its terms and conditions. The following terms and conditions shall govern the provision and use of the Services. The Services are intended for business use only.
1. Definitions and Interpretation
In addition to any terms defined in the Order Form, the following definitions and rules of interpretation apply to this Agreement:
“API” means any application programming interface(s) operated or used by the Supplier for provision of the Services to the Customer.
“Authorised Users” means those employees and independent contractors of the Customer who are authorised by the Customer to use the Software under this Agreement.
“Business Day” means a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.
“Confidential Information” means all confidential or proprietary information (however recorded or preserved) disclosed by one party or its employees, officers, subcontractors, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, products, services, data, know-how, or trade secrets of the disclosing party, including anything specified as being Confidential Information in clause 11.4.
“Customer Data” means any commercial or proprietary data which is uploaded or otherwise submitted to the Software directly by the Customer, its Authorised Users, or by the Supplier on the Customer's behalf, including any data submitted into the Software indirectly via any third party application used by the Customer.
“Data Processing Addendum” means the Supplier's Data Processing Addendum set out at URL.
"Data Protection Legislation" has the meaning ascribed to it in the Data Processing. The terms "Personal Data", "Process", "Processor", "Controller", "Data Subject Request", "Standard Contractual Clauses", "Supervisory Authority", "personal data breach", "technical and organizational measures" and "Sub-processor" shall have the meanings ascribed to them in the Data Protection Legislation.
“Datapoint” means a single completion by the machine learning model of the Software, e.g., a prompt and completion from GPT-3, and is a single row in the Supplier's data table and the lowest level at which the Supplier attributes feedback.
“Datapoint Limit” means the number of Datapoints which may be processed by the Customer and Authorised Users under the Customer's Subscription Tier each month, as detailed in the Order Form.
“Derived Data” means data derived from the Customer’s use of the Services or Supplier processing of Customer Data, including: (i) data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but shall exclude any Personal Data.
“Documentation” means those printed or online instructions, manuals, screens, and diagrams distributed or otherwise provided by the Supplier that pertain to the Software or the provision of Professional Services.
“Effective Date” means, unless otherwise specified in the Order Form, the date at which Customer has been provided with access to the Software.
"Fees" means the fees (if any) payable in consideration of the provision of the Services.
“Free Trial” means where access to the Software has been granted to the Customer by the Supplier on the basis of beta access, a free trial or pilot period.
“Force Majeure Event” has the meaning set out in clause 17.3.
“Initial Term” means the subscription period selected by Customer in the Order Form, which period shall commence on the Effective Date.
“Insolvency Event” means, with respect to a Party, (a) entering into a composition or arrangement with its creditors other than for the sole purpose of a solvent reconstruction; (b) an inability to pay its debts as they become due; (c) a person becoming entitled to appoint or appointing a receiver or an administrative receiver over that Party’s assets; (d) a creditor or encumbrancer attaches or takes possession of the whole or any part of that Party's assets which is not discharged within 14 days; or (e) any event occurs, or proceeding is taken, in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in (a) to (d) above.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Normal Business Hours" means 9.00 am to 5.00 pm local UK time during a Business Day.
"Order Form" means the form agreed between the Parties setting out the details of the Services being contracted for by the Customer and governed by these Terms of Service.
“Overage Fees” means the volume based charges set out in the Order Form which are payable by the Customer in relation to each Datapoint processed by the Customer in excess of the Customer's Datapoint Limit.
“Payment Method" means a current, valid, accepted method of payment, as may be updated from time to time by Supplier, and which may include payment via a third party payment processor.
"Professional Services" means professional services provided by Supplier for Customer's use of the Software.
“Renewal Term” means a period of time equal to the Initial Term, commencing on expiry of the Initial Term or the immediately preceding Renewal Term (as appropriate).
"Services" means the provision by the Supplier of access to the Software to allow Authorised Users to access and use the Software on the Customer's behalf and any Professional Services to be provided under this Agreement (in each case as applicable and given the context in which the term "Services" is used).
“Software” means the Supplier's software application(s), as may be further described in the Order Form, for which Customer has requested a licence (including any related API or Website from time to time) to which the Customer will be granted remote access pursuant to the terms and conditions of this Agreement.
“Subscription Fees” means the fees detailed in the Order Form which are payable by the Customer to the Supplier for use of the Software (as amended from time to time in accordance with the terms and conditions of this Agreement).
“Subscription Tier” means the subscription plan selected by the Customer at the time of subscribing to the Services, as set out in the Order Form.
“Term” means the Initial Term and successive Renewal Terms.
“Third Party Data” means data, information, works, and materials made available to the Customer by a Third Party Provider which is accessible through the Software.
“Third Party Data Provider” means any provider of Third Party Data.
"Trial Period" means the duration of the Free Trial set out in the Order Form or as otherwise notified to the Customer by the Supplier using any reasonable means, and in any other case, the period of one (1) week commencing on the commencement of the Free Trial.
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, data, or the user experience, including worms, Trojan horses, viruses and other similar things or devices.
“Website” means any website operated by Supplier through which the Software is delivered to or accessed by the Customer.
In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to writing or written includes e-mail; (d) references to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement; (e) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Free Trial
2.1 Application: The provisions of this clause 2 shall apply only where the Order Form refers to the Customer subscribing to a Free Trial. In the event of any conflict or inconsistency between the other provisions of this Agreement as they relate to the Free Trial and the provisions of this clause 2, the provisions of this clause 2 shall prevail to the extent of the conflict or inconsistency.
2.2 Duration: During the Trial Period, the Supplier will make the Software available to the Customer on a trial basis until the earlier of: (a) expiry of the Trial Period, (b) the date on which any paid subscription to the Software commences, and (c) termination of the Trial Period by us at any time in our sole discretion by giving notice to you in writing.
2.3 Customer Data during the Trial Period: Any Customer Data uploaded or otherwise processed using the Software during the Trial Period will become inaccessible upon termination or expiry of the Free Trial and the Supplier shall be entitled to delete it, unless the Customer purchases a subscription to the Software before the end of the Trial Period. Nothing in the preceding sentence shall restrict or prevent the Customer from maintaining backups of, or removing, Customer Data during the Trial Period.
2.4 Amendments to this License Agreement: The following provisions of this License Agreement shall not apply during the Trial Period:
2.4.1 any and all provisions relating the provision of support services or levels of support; and
2.4.2 clause 10.3.
2.5 Disclaimer: During the Trial Period, the Software is made available to the Customer "as is", and any use by the Customer of the Software during the Trial Period will be at the Customer's sole risk. The Supplier makes no warranties relating to the Software throughout the Trial Period and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, fitness for a particular purpose, or that the Customer's use of the Software during the Trial Period will be uninterrupted, timely, secure or free from error. The foregoing provisions of this clause 2.5 shall be enforceable to the maximum extent permitted by applicable law.
2.6 Limitation of Liability
Subject to the retained provisions of clause 12.4, under this clause 2, the Supplier's total liability to the Customer for any loss or damage relating to the Trial Period shall not exceed an amount equal to one hundred pounds (£100).
3. Access to the Software
3.1 Subject to Customer's payment of the Fees and compliance with the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit the Authorised Users to use the Software during the Term.
3.2 The Customer shall not, and shall procure that the Authorised Users shall not, access, store, distribute or transmit any Viruses or any material during its use of the Software that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's and Authorised Users' access to any material that breaches the provisions of this clause 3.2.
3.3 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, the Customer shall not, and shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means, or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (including its object code and source code).
3.4 The Customer shall not, and shall not attempt to: (a) access all or any part of the Software in order to build a product or service which competes with the Software; (b) make the Software or any of the Services available to any third party except to Authorised Users; or (c) attempt to obtain, or assist any third party in obtaining, access to the Software, other than as provided under this clause 3.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6 The Customer acknowledges and agrees that each Authorised User must keep a secure password for their use of the Software which must be kept confidential and secure against unauthorised access or use (including by any other Authorised User).
4. Third Party Data
4.1 The Customer acknowledges that Third Party Data is accessible by means of the Software in the form and manner, subject to such restrictions and other terms, according to the timing, and for so long as, the Third Party Data are put into circulation by the relevant Third Party Data Provider; accordingly, the Customer shall be responsible for obtaining any and all permissions, permits, licences, and other requirements of access (including, where relevant, opening and maintaining accounts with the relevant Third Party Data Provider) to the Third Party Data at all times and the Supplier undertakes no obligation or responsibility, and excludes all liability, under or in connection with this Agreement in relation to any and all Third Party Data, the acts or omissions of a Third Party Data Provider, or the systems used by the Third Party Data Provider, including any and all of the following:
4.1.1 the failure of a Third Party Data Provider to put into circulation any Third Party Data;
4.1.2 the withdrawal or suspension of, or the imposition of restrictions on the use of or access to, any Third Party Data previously put into circulation by a Third Party Data Provider;
4.1.3 the delay of a Third Party Data Provider in putting into circulation any Third Party Data; and
4.1.4 the quality of Third Party Data.
4.2 The Customer hereby acknowledges and agrees that:
4.2.1 the Customer hereby authorises the Supplier to connect the Software to the Third Party Data Provider’s systems for the purpose of making the Third Party Data available to the Customer through the Software, and shall obtain the consent of the Third Party Data Provider to permit the Supplier to do so;
4.2.2 a failure by the Customer to do or provide anything required by the Third Party Data Provider to gain access to the Third Party Data (including under the Customer's responsibilities set out in clause 4.1) by means of the Software, or failure by a Third Party Data Provider to consent to the Supplier connecting the Software to the Third Party Data Provider's systems (in the manner required by the Supplier) will prevent the Supplier providing access to the Third Party Data and that shall not affect the Customer’s obligations under this Agreement;
4.2.3 the Customer's access to and use of Third Party Data shall be governed by the Agreement and the terms (if any) published by the relevant Third Party Data Provider relating to or in connection with the access to or use of the Third Party Data; and
4.2.4 as between the parties, the Customer shall be responsible for any person who access and uses the Third Party Data, as though any such person is the Customer.
4.3 The Customer shall inform the Supplier immediately if the Third Party Data Provider withdraws or places conditions upon the Customer's access to and use of Third Party Data using the Software.
4.4 It is the Customer’s responsibility to ensure that the restrictions and other terms (if any) that are published by a Third Party Data Provider and applicable to the use of Third Party Data are suitable for its requirements.
4.5 Nothing in the Agreement removes the need for the Customer to acquire at its cost the necessary rights to use the Third Party Data, and the Customer shall provide all equipment, systems and services that are necessary to access the Third Party Data through the Software.
5. Supplier’s Obligations
5.1 Subject to the payment of the Fees when due, the Supplier shall (a) provide the Services to the Customer on and subject to the terms and conditions of this Agreement; and (b) use reasonable care and skill in the provision of the Professional Services.
5.2 Notwithstanding clause 5.1, the Customer acknowledges that the Software may evolve over time and that functionality may be added or removed from time to time.
5.3 The Supplier does not warrant that the Customer's use of the Software will be uninterrupted or error-free, or that the Software and/or the information or results obtained by the Customer through its use of the Software will meet the Customer's requirements. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Customer Data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities
5.4 The Supplier may process the Customer's personal data in the performance of its obligations under this Agreement. Any such processing will be carried out in accordance with the Data Processing Addendum.
5.5 Where Supplier has agreed to provide Professional Services, such Professional Services shall be carried out in accordance with the Documentation.
5.6 This Agreement shall not prevent Supplier from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6. Customer’s Obligations
6.1 The Customer shall cooperate with the Supplier in all respects in relation to this Agreement, including granting to the Supplier all necessary access to information and Customer Data as may be required by the Supplier from time to time to fulfil its obligations under this Agreement, including granting to the Supplier full and unrestricted access to the Customer’s account in order for the Supplier to provide support for, or to fix any errors in, the Software.
6.2 The Customer shall be responsible for setting the access rights for each of its Authorised Users and shall ensure that all Authorised Users' use of the Software is strictly in accordance with the terms and conditions of this Agreement. The Customer shall be responsible for any Authorised User's breach of this Agreement.
6.3 The Customer shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to the Supplier’s data centres.
6.4 The Customer shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
7. Suspension of Service
7.1 The Supplier may suspend the access to or use of the Software by the Customer and any or all of the Authorised Users if the Supplier determines or reasonably suspects that use of the Services:
7.1.1 is in breach of this Agreement;
7.1.2 poses a security risk;
7.1.3 is adversely impacting or may adversely impact (as appropriate) the Services or any service provided by the Supplier to a third party;
7.1.4 where it is in the legitimate interests of the Supplier to do so, including where there is a reasonable risk that the Customer may default in the payment of the Fees,
and the Supplier shall use its reasonable endeavours to notify the affected Authorised Users and as soon as is reasonably practicable, and may use any reasonable means to do so. Access shall only be reinstated once the Supplier is reasonably satisfied that the aforementioned suspension events have been suitably resolved.
7.2 Where the Supplier suspends access to or use of the Software under clause 7.1, the Customer remains responsible for all Fees.
8. Customer Data and Derived Data
8.1 The Customer shall own all right, title and interest in and to all the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
8.2 The Customer warrants and represents that it has the authority, including all necessary rights, licences, and permissions, to upload and use, and to permit the Supplier to use, the Customer Data in accordance with this Agreement.
8.3 The Customer hereby grants to the Supplier a worldwide, non-exclusive, irrevocable, royalty free licence during the Term to use the Customer Data for the purpose of providing the Services.
8.4 The Customer acknowledges that the Supplier may use the Customer Data to improve the performance and functionality of the Software to develop improvements, updates, upgrades, modifications, or derivative works thereof which shall constitute Improvements (as defined in clause 10.2).
8.5 The Customer shall indemnify and hold harmless the Supplier from and against all losses, damages, liabilities and claims, arising from or in relation to any third party claim that the processing and use of the Customer Data in accordance with this Agreement infringes or misappropriates any third party Intellectual Property Rights or breaches Data Protection Legislation.
9. Fees and Payment
9.1 Except where clause 2 (Free Trial) applies, the Fees shall consist of the following elements:
9.1.1 the Subscription Fees; and
9.1.2 Overage Fees,
which shall be payable in accordance with the Order Form and this clause
9.2 The Supplier will monitor the Customer’s use of the Services and will automatically apply the Overage Fees if the number of Datapoints processed by the Customer and Authorised Users (according to the records of the Supplier) in a month exceeds the Datapoint Limit for that month. The Customer permits the Supplier to monitor the Services in order to establish the number of Datapoints processed by the Customer using the Software.
9.3 The Customer shall pay the without set-off in respect of any liability of the Supplier and, unless otherwise specified in the Order Form, according to the following frequency:
9.3.1 monthly in advance in relation to the Subscription Fees, commencing on the Effective Date; and
monthly in arrears in relation to the Overage Fees on the date on which the Overage Fees are applied under clause 9.2.
9.4 If the Supplier has not received payment by the due date, and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability: (i) disable the Customer's and all Authorised Users’ access to all or part of the Software until the invoice(s) concerned are paid in full; and/or (ii) charge the Customer interest on a daily basis on any overdue amounts at an annual rate equal to 5% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5 Fees are payable in the currency detailed in the Order Form and are non-cancellable and non-refundable. Fees are stated inclusive of value added or other applicable sales tax.
9.6 To use the Services, the Customer must provide one or more Payment Method which the Customer authorises the Supplier to charge in accordance with this Agreement. The Supplier may refuse to grant access to the Software or the Services, if any payment is not successfully settled due to expiration, insufficient funds or otherwise. For some Payment Methods the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the processing of the Payment Method, which shall be due and payable by the Customer. Customer may have to accept the terms and conditions of the issuer of the Payment Method, or the third party payment processor used by Customer to make the relevant payment.
9.7 The Customer shall make all payments under this Agreement without withholding or deduction of, or in respect of, any and all taxes, unless required by law. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to the Supplier such additional amount as will ensure that the Supplier receives the same total amount that it would have received if no such withholding or deduction had been required.
9.8 The Supplier shall be entitled to increase the Subscription Fees and the per Datapoint fee used to determine the Overage Fees on the first anniversary of the Effective Date, and each anniversary of the Effective Date thereafter on thirty (30) days' prior written notice to the Customer.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in and to the Software and Services, shall belong to and remain vested in (or automatically upon creation shall vest in), the Supplier. Except for the licence granted to the Customer in clause 3.1, nothing in this Agreement grants to the Customer any rights to or in any Intellectual Property Rights in the Software or the Services. The Supplier makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software.
10.2 Without prejudice to clause 3.4 or clause 10.1, to the extent that the Customer’s or any Authorised User’s use of the Software results in any modifications, adaptations, developments, or any derivative works of or to the Software or the Services (“Improvements”), any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by the Supplier.
10.3 The Supplier shall defend the Customer against any third party claim that the use of the Software in accordance with this Agreement infringes any third party Intellectual Property Right in the United Kingdom and shall indemnify Customer for and against any amounts awarded against the Customer in judgment or settlement of such claims, provided that (i) the Supplier is given prompt notice of such claim; (ii) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; (iii) the Supplier is given sole authority to defend or settle the claim; and (iv) the Customer makes no admission of liability or fault itself or on behalf of the Supplier. In the defence or settlement of any claim pursuant to this clause 10.3, the Supplier may at its sole option and expense either: (i) procure for the Customer the right to continue using the Software in the manner contemplated by this Agreement; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate this Agreement immediately by providing written notice to the Customer, without liability to the Customer.
10.4 The Supplier shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 10.3) if the alleged infringement is based on: (i) modification of the Software by anyone other than the Supplier; or (ii) the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by the Supplier; or (iii) the Customer’s or any Authorised User’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred. The Customer shall defend the Supplier against all or any costs, claims, damages or expenses incurred by the Supplier in respect of any third party claim relating to the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement, provided that (i) the Customer is given prompt notice of such claim; (ii) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (iii) the Customer is given sole authority to defend or settle the claim; and (iv) the Supplier makes no admission of liability or fault itself or on behalf of the Customer.
11 Confidential Information
11.1 Each Party agrees to keep confidential and not use for any purpose other than the performance of its obligations under this Agreement, all Confidential Information of the other Party.
11.2 Each Party will only disclose or reveal any of the other Party’s Confidential Information disclosed to it to: (i) those of its personnel who are required in the course of their duties to receive it for the purpose for which it is supplied (provided that each Party shall ensure that any such personnel to whom it discloses the other Party's Confidential Information comply with this clause 11.2); and (ii) any court, governmental or administrative authority competent to require the same, or as required by any applicable law, regulation, or governmental or regulatory body which is lawfully entitled to require the disclosure (and in each such case, the Party shall, if legally permissible, notify the other Party of the requirement as soon as reasonably practicable and use commercially reasonable endeavours to discuss with the other Party and agree any possible limitations or restrictions on disclosure in advance to the extent permitted by law).
11.3 The provisions of clauses 11.1 and 11.2 shall not apply to information that: (i) is or becomes generally available in the public domain otherwise than arising in connection with a breach of this clause 11 by the recipient; (ii) is lawfully in the recipient's possession free of any restrictions as to its use or disclosure at the time of disclosure by the disclosing Party; (iii) is lawfully acquired from an independent third party who did not itself obtain it under an obligation of confidentiality; or (iv) is independently developed without access or reference to any information disclosed by the disclosing Party.
11.4 The Customer acknowledges that the Software, including the way in which data, information, works and materials are visualised when using, or are otherwise presented by, the Software and the results of any performance tests of the Software, constitute the Supplier's Confidential Information.
11.5 The provisions of this clause 11 shall survive termination or expiry of this agreement, however arising.
12. Limitation of Liability
12.1 This clause 12 sets out the entire financial liability of the Supplier to the Customer arising under or in connection with this Agreement, including in respect of any use made by the Customer or its Authorised Users of the Software and the Services.
12.2 Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for any information or results obtained by Authorised Users from use of the Software, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information or data, or any actions taken by the Supplier at the Customer's direction. No other party is entitled to rely on the output, information or results produced by the Customer through its use of the Software for any purpose whatsoever.
12.3 Except as expressly and specifically provided in this Agreement, 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. The Customer acknowledges that the Software, the Services, and any information provided by or on behalf of the Supplier are provided to the Customer on an "as is" basis.
12.4 Nothing in this Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
12.5 Subject to clause 12.4, the Supplier shall not be liable for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, including loss of profit, loss of business, loss of goodwill, loss of or corruption of data, loss caused or contributed to by any agent or Representative of the Customer, loss caused as a result of the Software being unavailable as a result of planned downtime for the Software, as notified to the Customer from time to time, loss arising from any failure of the Customer’s infrastructure and/or utilities, loss caused as a result of the Software being unavailable due to a Force Majeure Event, or loss caused by the failure or delay of any third party application or service or network.
12.6 Subject to the other provisions of this clause 12, the Supplier’s entire, aggregate liability to the Customer whether in contract, tort (including negligence), for breach of statutory duty or otherwise arising out of or relating to this Agreement shall be limited to the greater of: (i) the total Fees paid by the Customer during the twelve (12) months immediately preceding the date on which the claim arose, and (ii) one thousand pounds £1,000.
The Supplier may track and analyse the Customer’s and its Authorised Users' use of the Software for the purposes of security, to ensure the Customer's compliance with the Agreement, and to help the Supplier improve the Services, including the Software.
14. Term and Termination
14.1 Notwithstanding any reference in the Order Form to monthly payments for access to the Services, this Agreement shall commence on the Effective Date and shall continue thereafter for the Term, unless terminated in accordance with this clause 14 or any additional termination provisions specified in the Order Form.
14.2 Either party may terminate this Agreement by giving not less than:
14.2.1 seven (7) day's notice to the other to expire at the end of the Initial Term or the then current Renewal Term where the Initial Term is one (1) month; or
14.2.2 thirty (30) day's notice to the other to expire at the end of the Initial Term or the then current Renewal Term where the Initial Term is one (1) year.
14.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if: (i) the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment; or (ii) if the other Party commits a material breach of any terms of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) Business Days after being notified in writing to do so; or (iii) the other Party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof, or suffers an Insolvency Event.
14.4 On termination of this Agreement for any reason (a) all licences granted under this Agreement shall immediately terminate; (b) all Fees which are outstanding on the date of termination shall become immediately due and payable; (c) subject to the terms and conditions of this Agreement, each Party shall return or destroy and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party; and (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Changes to this Agreement
15.1 The Supplier reserves the right to change this Agreement from time to time provided that such changes do not entitle the Supplier to render no performance at all under this Agreement or performance substantially different than that which ought reasonably to be expected by the Customer.
15.2 Changes to this Agreement under clause 15.1 will be notified to the Customer by the Supplier (using any reasonable means) by giving at least thirty (30) days' notice and shall have effect upon expiry of the notice.
The Customer hereby agrees that the Supplier shall be entitled to publicise that the Customer is a Subscriber to the Software, including use of the Customer's trade name and current logo or otherwise provided that such publicity does not imply any wider trading association or relationship between the Customer and the Supplier.
17.1 Entire agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
17.2 Assignment. The Customer shall not assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of the Supplier. The Supplier may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement without requiring any additional consent from the Customer.
17.3 Force Majeure. Neither Party is responsible for failing to fulfil its obligations (other than its payment obligations) under this Agreement due to causes beyond its reasonable control that directly or indirectly delay or prevent timely performance (“Force Majeure Event”). Any dates or times by which each Party is required to render performance under this Agreement shall be postponed automatically to the extent that the Party is delayed or prevented from meeting them by a Force Majeure Event. If the Force Majeure Event prevents, hinders, or delays the affected Party’s performance of its obligations for a continuous period of more than 30 days, the affected Party may terminate this Agreement by giving 30 days’ written notice to the other Party.
17.4 Notices. Any notice to be given under this Agreement shall be in writing and delivered by hand (delivery by courier shall be regarded as delivery by hand) or recorded delivery (or in the case of overseas post, by airmail) only to the Party concerned at the relevant address shown at the top of this Agreement (or such other address as may be notified by a Party to the other from time to time) and shall take effect: (a) if delivered by hand, at the time of delivery; (b) if delivered by recorded delivery, at the expiry of two (2) Business Days after the time of posting; or (c) if delivered by airmail, at the expiration of seven (7) Business Days after the time of posting.
17.5 Variation. Subject to clause 15 (Changes to this Agreement), no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised Representatives).
17.6 Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.7 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
17.8 Relationship. The relationship between the Parties is that of independent contractors and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties, nor authorise any Party to make or enter into any commitments for or on behalf of the other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person. The Parties acknowledge that the arrangements between them are non-exclusive. Nothing contained in this Agreement shall prohibit either of the Parties from conducting business activities with other third parties. Third party rights. A person who is not a Party to this Agreement shall not have any right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
17.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
17.10 Governing Law and Jurisdiction. 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. 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, its subject matter or formation.
Last updated: 12 May 2023