Terms of service - Software licence basis

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These Terms set out the basis upon which the Supplier will license the use of its Software and provide Services in respect of the Software. 

By submitting an Offer or by accepting these Terms, whether as part of the Supplier’s online ordering process or otherwise, the Customer agrees to contract on the basis of these Terms and in doing so agrees that they prevail over any other terms which the Customer may seek to impose or introduce, including (without limitation) any terms set out in or relating to any purchase order, acceptance or acknowledgement issued by the Customer. 

Any person submitting an Offer, or making any other representation, on behalf of the Customer represents and warrants that they have the legal right and authority to bind the Customer to the terms of the Agreement.

The Customer has evaluated the Software and satisfied itself as to it suitability, and confirms that it has not relied on any representation or statement other than as set out in the Agreement. 

The Agreement supersedes all and any previous agreements in relation its subject matter, including (without limitation) any related non-disclosure agreements previously entered into by the parties.


1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in the Agreement.
Acceptable Use Policy: the Supplier’s acceptable use policy available at http://www.gold-vision.com/acceptable-use-policy.
Activation Date: the date on which the Software is activated for use by the Customer. 
Agreement: the agreement between the Customer and the Supplier comprising: (i) these Terms, (ii) the Order, and (iii) any documents specifically referred to or incorporated into these Terms.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Confidential Information: all and any confidential information (in whatever form) whether or not marked as such including but not limited to commercial, financial, marketing and technical information relating to the disclosing party’s business, services, products, clients, consultants, employees, suppliers, finances, proprietary computer software, website, know how, trade secrets, intellectual property, future product plans, future project plans and documentation in any form or medium whatsoever whether disclosed orally or in writing relating to any of the foregoing (including copies thereof).
Consultancy Fees: the fees payable in respect of the Consultancy Services, as set out in the Quotation.
Consultancy Services: those professional consultancy services (if any) which the Supplier agrees to provide to the Customer pursuant to an Order.
Current Version: the current or most recent release of the Software.
Customer: the legal person (whether company, partnership, individual or otherwise), identified in the Quotation, to whom the Services will be provided. 
Customer Data: the data provided and/or input by the Customer or on the Customer's behalf in connection with the Agreement.
Documentation: the documents provided by the Supplier relating to the Software, including technical documentation, operations manual and (where applicable) specification(s); copies of which are available at http://www.gold-vision.com/Support7/help.aspx .
Effective Date: the date set out in the Order.
Fees:  the fees payable for the Services, the Licence Fees and/or any other fees or charges payable under the Agreement.
Initial Support Term: the initial support term of 12 months (unless otherwise agreed in writing), which shall commence on the Service Commencement Date.
Licence: the licence of the Software granted under clause 2.1.
Licence Fees: the licence fees set out in the Order.
Maintenance Release: a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Offer: the offer made by the Customer when it confirms acceptance (by any means, including by email) of a Quotation.
Order: the binding order formed when the Supplier accepts the Customer Offer, either expressly or by acting in accordance with the Offer.   
Privacy Policy: the Supplier’s privacy policy available at www.gold-vision.com/privacy-policy.
Quotation: a quotation for Licence(s) and or Services issued by the Supplier on these Terms.
Renewal Period: the period described in clause 4.
Security & Backup Policy: the Supplier’s security policy available at http://www.gold-vision.com/security-backup-policy.
Services: the Support Services and/or Consultancy Services, as applicable.
Service Commencement Date: the date from which the Support Services will be provided, as agreed in writing.
Service Level Agreement: the Supplier’s service level agreement available at http://www.gold-vision.com/service-level-agreement.
Software: the software applications described in the Order.
Supplier: Esteiro Business Solutions Limited (company registration no. 04292582) of Ryehills Park, Ryehills Lane, West Haddon, Northamptonshire, NN6 7BX, United Kingdom.
Support Fees: the support fees set out in the Order or otherwise charged in accordance with the Agreement.
Support Services: the support services described in the Service Level Agreement.
Terms: these software licence & support terms. 
Users: those Customer employees and officers authorised to use the Software, subject to the User Limit.
User Limit: the maximum number of Users permitted to use the Software, as set out in the Order, as may be varied pursuant to clause 3.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

2. LICENCE
2.1 In consideration of the payment of the Licence Fees by the Customer, the Supplier grants the Customer a non-exclusive licence for the use of the Software by Users only. The Licence shall commence on the Activation Date and, unless terminated pursuant to the terms of the Agreement, shall run for the full period of the copyright in the Software.
2.2 In relation to scope of use:
(a) the number of persons using the Software must not exceed the User Limit;
(b) for the purposes of clause 2.1, use of the Software shall be restricted to (i) use in object code form, and (ii) unless otherwise agreed in writing by the Supplier, for the purpose of processing the Customer's data for the normal internal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than employees or officers of the Customer).
(c) the Customer may not use the Software other than as specified in clause 2.1 and clauses 2.2(a) and 2.2(b) without the prior written consent of the Supplier and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(d) the Customer may make backup copies of the Software as may be reasonably necessary for its lawful use. The Customer shall take all reasonable steps to prevent unauthorised copying.
(e) except as expressly stated in this clause 2, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
2.3 The Customer may not use any information provided by the Supplier or obtained by the Customer during any such reduction permitted under Clause 2.2(e) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.4 In the event that the Customer at any time requests the Supplier to move the Software into the Supplier’s hosted environment, the Supplier shall be entitled to terminate the Licence and the Support Services on notice and require the Customer to move to the Supplier’s subscription-based Terms of Service at www.gold-vision.com/terms-and-conditions .    
2.5 The Customer shall not, without the prior written consent of the Supplier:
(a) sub-license, assign or novate the benefit or burden of the Licence in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; 
(c) deal in any other manner with any or all of its rights and obligations under this Agreement;
(d) access all or any part of the Software or the Documentation in order to build a product or service which competes with those of the Supplier; or
(e) use the Software or the Documentation to provide services to third parties.
2.6 The Customer shall:
(a) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify the Supplier; and
(b) pay, for broadening the scope of the licences granted under this Agreement to cover any unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
2.7 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of the Agreement, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
2.8 The rights provided under this clause 2 are granted to the Customer only and, unless otherwise agreed in writing by the Supplier, shall not be considered granted to any subsidiary or holding company of the Customer or any associated or affiliated company.

3. CHANGE REQUESTS
3.1 The Customer may request changes to the Licence or the Services at any time during the term of the Agreement. In response to such a request, the Supplier shall provide a Quotation. An Order will be formed only when the Supplier accepts the Customer Offer and the Agreement will then be amended in accordance with the Order. Unless or until the Supplier accepts the Customer Offer, the Supplier will be under no obligation with respect to the change request.
3.2 Where the Supplier agrees any alteration of the User Limit, the terms of the Licence and the Agreement shall be deemed amended in accordance with the terms agreed by the Supplier.

4. SERVICES
Support Services
4.1 In consideration of the payment of the Support Fees by the Customer, the Supplier shall provide the Support Services for the Initial Support Term. Thereafter, the provision of the Support Services shall automatically continue for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Support Term or any Renewal Period, in which case the Support Services shall terminate upon the expiry of the Initial Support Term or Renewal Period, as applicable; or
(b) otherwise terminated in accordance with the provisions of the Agreement.
4.2 The Support Services will be provided during Normal Business Hours in accordance with the Service Level Agreement in effect at the time the Services are provided.
4.3 The Supplier may, on prior notice to the Customer, make changes to the Support Services, provided such changes do not have a material adverse effect on the Customer's business operations. Enhanced support services are available upon request.  
4.4 As part of the Support Service, and for no additional charge, the Supplier may from time to time issue Maintenance Releases.
4.5 The Customer shall make reasonable efforts to install Maintenance Releases promptly upon receipt of notification of their availability. The Supplier (i) is under no obligation with respect to the correction of errors which would be rectified by the installation of the latest Maintenance Release, and (ii) gives no warranties or undertakings with respect to the rectification of errors to any version of the Software other than the Current Version. For the avoidance of doubt, (i) the provision of Maintenance Releases shall apply only whilst the Supplier is obliged to provide the Support Services hereunder, and (ii) unless otherwise agreed by the Supplier, nothing entitles the Customer to any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business.
4.6 The Supplier shall have no obligation to provide the Support Services where faults arise from:
(a) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by the Supplier);
(b) failure to maintain the necessary environmental conditions for use of the Software;
(c) use of the Software in combination with any equipment or software not approved or designated by the Supplier for use with the Software, or any fault in any such equipment or software;
(d) modifications of the Software by any person other than the Supplier or a person acting under the Supplier's instructions;
(e) any breach of the Customer's obligations under this Agreement howsoever arising or having the Software maintained by a third party;
(f) any modification not authorised by the Supplier; or
(g) operator error.

Consultancy Services
4.7 The Supplier will provide the Consultancy Services in accordance with the Agreement and the applicable Order and in a timely and professional manner, using reasonable endeavours to comply with any time schedules agreed in writing with the Customer. Any such times or dates shall be estimates only and time for performance by the Supplier shall not be of the essence.
4.8 The Supplier will use reasonable endeavours to ensure the continuity of the Consultancy Services and of any personnel engaged in the Consultancy Services but shall have discretion to make changes if needed, in which event it shall provide replacements of similar status and experience.
4.9 The Supplier shall ensure that the personnel engaged in providing the Consultancy Services will be suitably qualified and have the necessary levels of skill and expertise required to carry out any tasks for which they are responsible.  
4.10 The Supplier reserves the right to make changes to the Services which are necessary to comply with applicable law or safety requirements, or which do not materially affect the nature or quality of the Services, and shall notify the Customer of any such changes. Save as aforesaid, either party may request changes to the nature or scope of the Services, which shall be submitted in writing and be of sufficient detail to enable the other party to assess the scope and/or impact of the proposed change and any such change shall be effective only once agreed by both parties.     
4.11 If any Consultancy Services are cancelled or postponed by the Customer, or its representative, prior to commencement the following fees are payable:
(a) If notice of more than 5 Business Days is given before the scheduled Service start, there will be no cancellation charge. 
(b) If notice of more than 2, but less than or equal to 5 Business Days is given before the scheduled Service start, the cancellation charge will be 50% of the applicable Consultancy Fees. 
(c) If notice of 2 Business  Days or less is given before the scheduled Service start the cancellation charge will be 100% of the applicable Consultancy Fees.
Once the Consultancy Services have commenced, the Consultancy Services may only be terminated in accordance with the Agreement.   

5. CHARGES AND PAYMENT
5.1 The Customer shall pay the Fees to the Supplier in accordance with this clause 5.
5.2 The Customer shall on or prior to the Effective Date provide to the Supplier valid, up-to-date and complete payment details (such as Paypal or direct debit details) or approved purchase order information acceptable to the Supplier and any other required valid, up-to-date and complete contact and billing details. Where the Customer provides payments details, the Supplier is hereby authorised to take payment upon issue of invoice.
5.3 The Customer will pay all Fees in accordance with the terms set out in the applicable Quotation. By entering into the Agreement, the Customer hereby commits to payment of the Fees for the full term of the Agreement, including (without limitation) the payment of Support Fees for the full duration of the then relevant term. 
5.4 If the Supplier has not received payment in accordance with the terms of the Agreement the Supplier may, without prejudice to any other rights and remedies and without liability to the Customer, suspend access to all or part of the Services and/or the Software (as applicable) and the Supplier shall be under no obligation to provide any or all of the Software or the Services while the invoice(s) concerned remain unpaid.
5.5 All amounts and fees stated or referred to in the Agreement:
(a) shall be payable in pounds sterling unless otherwise stated in the Quotation;
(b) are non-cancellable and non-refundable;
(c) are payable in full, net of all charges, and without set-off, deduction or withholding; and
(d) are exclusive of value added tax or other local taxes, which shall be added to the Supplier's invoice(s) at the appropriate rate.
5.6 The Supplier shall be entitled to increase the Fees upon 90 days' prior notice to the Customer. Any changes to Support Fees shall take effect from the start of the next Renewal Period. 

6. SUPPLIER'S WARRANTIES & OBLIGATIONS
6.1 The Supplier warrants that the Software will conform in all material respects to the Documentation for a period of 90 days from the commencement of the Licence (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Documentation, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of the Licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier's option, do one of the following:
(a) repair the Software;
(b) replace the Software; or
(c) terminate the Licence immediately by notice in writing to the Customer and refund any of the Licence Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
provided the Customer supplies all information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
6.2 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement. The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
6.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
6.4 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.5 The Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

7. CUSTOMER'S OBLIGATIONS
7.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) such documents, data, drawings, plans, diagrams, designs, reports, specifications or other information as the Supplier may reasonably require in order to provide the Services, including but not limited to Customer Data, security access information and configuration services, and ensure all information is complete, true and accurate in all material respects;
(b) appoint a representative, who shall have the authority contractually to bind the Customer on matters relating to the Services;
(c) make available such Customer staff and applicable sub-contractors or suppliers (if any) as may be required for the Supplier to provide the Services and ensure that they co-operate fully with the Supplier in all material respects;
(d) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner;
(e) ensure that the Users use the Services and the Documentation in accordance with the Agreement (the Customer accepting responsibility for any User's breach of the Agreement);
(f) obtain and maintain all Customer licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement;
(g) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
(i) comply with all applicable laws and regulations with respect to its activities under the Agreement.
7.2 The Customer acknowledges that the Supplier’s ability to provide the Services depends on the Customer satisfactorily complying with the obligations stated in this Agreement and that should the Customer delay or fail to perform any such obligations then the Supplier will not be liable in any way for any delay, loss or damage, cost increase or other consequences arising from such failure.
7.3 The Customer shall not access, store, distribute or transmit any Viruses, or breach the terms of the Supplier’s Acceptable Use Policy The Supplier reserves the right, without liability and without prejudice to its other rights, to disable the Customer's access to any material that breaches the provisions of this clause. At or prior to the Commencement Date, the Customer will confirm whether it has experienced any significant Virus issues in the previous 12 months and will provide the Supplier with all relevant details in relation to the same. The Customer also undertakes to promptly notify the Supplier of any such Virus issues (including, without limitation, any ransomware attacks) it experiences during the term of the Agreement.   

8. DATA AND SECURITY
8.1 The Customer shall own all right, 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.
8.2 The Customer warrants that it owns all rights in the Customer Data and that the Supplier’s use and processing of the Customer Data in accordance with the Agreement will not infringe third party rights.  The Customer hereby grants the Supplier the non-exclusive worldwide right and licence to process, copy, store, transmit, display, print, view and otherwise use the Customer Data to the extent required for the provision of the Services.  
8.3 Unless backup arrangements are agreed in writing and specifically comprised in the Services, the Supplier is not responsible for maintaining backup copies of any Customer Data. The Customer accepts full responsibility in respect of the security and backup of any and all Customer Data and for the security and safety of its systems and software.  The Customer agrees to take regular data backups to protect against data loss, corruption or other damage. The Supplier’s liability in relation to any data loss, corruption or security will be limited to that resulting from its failure to comply with any contractual commitments given and the Supplier does not otherwise accept responsibility in those respects.  Where data backup and/or security is comprised in the Services it will, unless otherwise agreed in writing, comprise the backup services set out in the Supplier’s Security & Backup Policy.
8.4 Any Customer personal data provided directly to the Supplier by the data subject (and in respect of which the Supplier is the data controller) will be processed in accordance with the Supplier’s Privacy Policy. Where the Supplier processes any other personal data on the Customer's behalf when performing its obligations under the Agreement, the parties agree that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and the Supplier's other obligations under the Agreement;
(b) the Customer shall ensure that it is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement on the Customer's behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with the terms of the Agreement and any lawful and reasonable instructions given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
8.5 The Customer accepts that the processing of electronic communications is a fundamental requirement for the provision of the Services and the Customer therefore consents to the Supplier’s interception and storage of electronic communications and Customer Data in connection with the Services.  The Customer accepts that electronic communications involve transmission over the Internet, and over other networks, which are outside the Supplier’s control.  The Customer accepts the risk associated with electronic communications and the possibility that they may be accessed by unauthorised parties and agrees that the Supplier is not responsible for any related delay, loss or damage.

9. THIRD PARTY PROVIDERS AND CONTENT
The Customer acknowledges that the Software and/or Services may enable or assist it to access the website content of, correspond with, and purchase or acquire products, services, data, information or other content from third parties (together, ‘Third Party Content’), including the selection and use of information for data enrichment purposes, and that it does so solely at its own risk.  The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the use of Third Party Content or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier.  The Customer is responsible for checking the relevant third party terms of use, and privacy policy and otherwise clearing Third Party Content for use.  The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, the Software (inclusive of the rights in Maintenance Releases) and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, the Services or the Documentation.
10.2 The Supplier confirms that it has all the rights in relation to the Services, the Software and the Documentation as are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
10.3 ‘Esteiro’ and ‘Gold-Vision’ are trade marks owned by the Supplier and all rights therein are specifically reserved.

11. CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement.  A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that details of the Software, Documentation and Services, constitute the Supplier's Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 This clause 11 shall survive termination of the Agreement, however arising.
11.8 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12. INDEMNITY
12.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Software or Documentation infringes any UK patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, 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 exclusive authority to defend and settle the claim.
12.2 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, Software and/or Documentation, 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 exclusive authority to defend and settle the claim.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Software or the Documentation, replace or modify the Software or Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Software or Documentation by anyone other than the Supplier; or
(b) the Customer's use of the Software or Documentation in breach of the Agreement or in a manner contrary to the instructions given by the Supplier; or
(c) the Customer's use of the Software or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 Subject always to the terms of clause 13, the foregoing states the Customer's exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. LIMITATION OF LIABILITY
13.1 This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, officers, agents and sub-contractors) to the Customer:
(a) arising under or in connection with the Agreement;
(b) in respect of any use made by the Customer of the Software, Services and/or Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
13.2 Except as expressly and specifically provided in the Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Software or Services, or any actions taken by the Supplier at the Customer's direction; and
(b) 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 the Agreement, including (without limitation) any implied term(s) as to satisfactory quality or fitness for purpose.
13.3 Nothing in the Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) for any other liability which may not be excluded or limited under applicable law.
13.4 Subject to clause 13.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for (i) 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 (ii) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) the Supplier'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 the Agreement shall be limited to 150% of the Fees paid or payable by the Customer during the 12 months immediately preceding the date on which the claim arose. For the avoidance of doubt, the said limit applies to all and any indemnities given by the Supplier.

14. SUSPENSION
14.1 Without prejudice to any other right, power or remedy and without liability, the Supplier reserves the right to limit or suspend the Services:
(a) if it is reasonably necessary to protect the interests of the Customer or the Supplier, or the interests of any third party (including other customers) and/or to protect the security or operation of the Supplier’s systems or network or those of its customers;
(b) if the Customer breaches any of the terms of the Agreement or the Supplier reasonably believes the Customer has breached or is about to breach;
(c) if the Customer fails to pay any Fees when due;
(d) if the Customer fails to cooperate regarding any suspected or actual breach of the terms of the Agreement; or
(e) if required to do so by law or further to a request from any regulatory or governmental authority.
14.2 The Supplier may also temporarily suspend all or any part of the Services for the purpose of repair, maintenance or improvement of any systems. The Supplier shall use all reasonable endeavours to keep any such suspensions to a minimum and to carry out such works outside normal working hours wherever possible.    
14.3 The Supplier shall not be liable for any suspension of the Services under the above circumstances and the Customer shall not be entitled to any setoff, discount, refund or other credit as a result of such suspension and/or disconnection and the Customer agrees that any such downtime will be exempt from measurement under the Service Level Agreement.

15. TERMINATION
15.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party is or may be (in the reasonable opinion of the first party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business
If any breach under clauses 15.1(a)-(c) relates only to the Services, the Supplier may, at its discretion, elect to terminate the applicable Services only.
15.2 On termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate;
(b) the Customer shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the Supplier; and
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

16. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the 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 or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

17. CONFLICT
If there is an inconsistency between any of the provisions of the Agreement, the Order shall prevail over the Terms and the Terms shall prevail over any documents referred to or incorporated into the Terms.

18. VARIATIONS
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. WAIVER
No failure or delay by a party to exercise any right or remedy provided under the 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.

20. RIGHTS AND REMEDIES
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21. SEVERANCE
21.1 If any provision (or part of a provision) of the 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.
21.2 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.

22. ENTIRE AGREEMENT
22.1 The 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, including (without limitation) any non-disclosure agreements previously entered into by the parties relating to the subject matter hereunder.
22.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

23. ASSIGNMENT
23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
23.2 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 the Agreement.

24. NO PARTNERSHIP OR AGENCY
Each party confirms it is acting on its own behalf and not for the benefit of any other person. Nothing in the 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).

25. THIRD PARTY RIGHTS
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

26. NOTICES
26.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

27. GOVERNING LAW
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

28. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).