EVROUTING
Terms and Conditions of Supply
Supplier
Basemap Ltd
Registered Office Address:
Surrey Technology Centre
40 Occam Road
GUILDFORD
Surey GU2 7YG
Company No: 04121166
BACKGROUND
(A) The Supplier has developed certain software applications which
recommends routes for delivery of packages and makes the resulting reports
available to customers as a service, either accessible on-line, or through
permissive downloading of certain selected data.
(B) The Customer wishes to use the Supplier's services and be permitted to
download certain selected data.
(C) The Supplier has agreed to provide and the Customer has agreed to take
and pay for the Supplier's services subject to the terms and conditions of
this agreement.
BY USING THIS PRODUCT YOU AGREE TO THESE TERMS AND CONDITIONS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in
this agreement.
Authorised Users: those employees, agents and independent contractors of
the Customer who are authorised by the Customer to use the Services and the
Data, as further described in clause 2.3(d).
Business Day: a day other than a Saturday, Sunday or public holiday in
England when banks in London are open for business.
Change of Control:
shall be as defined in section 1124 of the Corporation Tax Act 2010, and
the expression change of control shall be construed accordingly and
controls, controlled and the expression change of control shall be
construed accordingly.
Confidential Information:
information that is proprietary or confidential and is either clearly
labelled as such or identified as Confidential Information in clause 11.5.
Customer Data:
any data inputted by the Customer, Authorised Users, or the Supplier on the
Customer's behalf for the purpose of using the Services or facilitating the
Customer's use of the Services.
Data:
the certain selected data sets made available to the Customer by the
Supplier as a result of the Services.
Effective Date:
the date of this agreement.
Initial Subscription Term:
the initial term of this agreement as set out in the supplier’s quotation.
Normal Business Hours:
9.00 am to 5.30 pm local UK time, each Business Day.
Proposal:
the information and content of documents provided to the Customer by the
Supplier that set out a description of the Services and the user
instructions for the Services.
Renewal Period:
the period described in clause 14.1.
Services:
the services provided by the Supplier to the Customer under this agreement
as more particularly described in the Proposal.
Software:
the online software applications provided by the Supplier as part of the
Services.
Subscription Fees:
the subscription fees payable by the Customer to the Supplier for the User
Subscriptions, as set out in the Supplier’s quotations and invoices
Subscription Term:
has the meaning given in clause 14.1 (being the Initial Subscription Term
together with any subsequent Renewal Periods).
Support Services Policy:
the Supplier's policy for providing support in relation to the Services
details of which can be made available on request.
Third Party Data:
any data inputted by the Supplier or any third party for the Customer's
benefit to enable the Customer to use the Services in accordance with the
Proposal.
User Subscriptions:
the user subscriptions purchased by the Customer pursuant to clause 9.1
which entitle Authorised Users to access and use the Services and the Data
in accordance with this agreement.
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.
1.2 A reference to a company shall include any company, corporation or
other body corporate, wherever and however incorporated or established.
1.3 A reference to a statute or statutory provision is a reference to it as
it is in force as at the date of this agreement and shall include all
subordinate legislation made as at the date of this agreement under that
statute or statutory provision.
2. USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the User Subscriptions in accordance
with clause
3.2 and clause 9.1, the restrictions set out in this clause 2 and the other
terms and conditions of this agreement, the Supplier hereby grants to the
Customer a non- exclusive, non-transferable right to permit the Authorised
Users to use the Services during the Subscription Term in accordance with
the Proposal.
2.2 Under certain circumstances the Customer may download Data, as provided
for in the Proposal.
2.3 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and
use the Services and the Data shall not exceed the number of User
Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more
than one individual Authorised User unless it has been reassigned in its
entirety to another individual Authorised User, in which case the prior
Authorised User shall no longer have any right to access or use the
Services and/or Data;
(c) each Authorised User shall keep a secure password for his use of the
Services, that such password shall be changed frequently and that each
Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised
Users and provide such list to the Supplier within 5 Business Days of the
Supplier's written request at any time or times;
(e) it shall permit the Supplier to audit the Services in order to
establish the name and password of each Authorised User. Such audit may be
conducted no more than once per calendar year, at the Supplier's expense,
and this right shall be exercised with reasonable prior notice, in such a
manner as not to substantially interfere with the Customer's normal conduct
of business;
(f) if any of the audits referred to in clause 2.3(e) reveal that any
password has been provided to any individual who is not an Authorised User,
then without prejudice to the Supplier's other rights, the Customer shall
promptly disable such passwords and the Supplier shall not issue any new
passwords to any such individual; and
(g) if any of the audits referred to in clause 2.3(e) reveal that the
Customer has underpaid Subscription Fees to the Supplier, then without
prejudice to the Supplier's other rights, the Customer shall pay to the
Supplier an amount equal to such underpayment as calculated in accordance
with the Supplier’s standard prices within 10 Business Days of the date of
the relevant audit.
2.4 The Customer shall not access, store, distribute or transmit any
Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing,
harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief,
sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any
person or property; and the Supplier reserves the right, without liability
or prejudice to its other rights to the Customer, to disable the Customer's
access to any material that breaches the provisions of this clause.
2.5 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of
exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement,
attempt to copy, modify, duplicate, create derivative works from, frame,
mirror, republish, download, display, transmit, or distribute all or any
portion of the Software and/or Data (as applicable) in any form or media or
by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise
reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Data in order to build a
product or service which competes with the Services and/or the Data; or
(c) use the Services and/or Data to provide services to third parties; or
(d) subject to clause 22.1, license, sell, rent, lease, transfer, assign,
distribute, display, disclose, or otherwise commercially exploit, or
otherwise make the Services available to any third party except the
Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the
Services and/or Data, other than as provided under this clause 2; and
2.6 The Customer shall use all reasonable endeavours to prevent any
unauthorised access to, or use of, the Services and, in the event of any
such unauthorised access or use, promptly notify the Supplier.
2.7 The rights provided under this clause 2 are granted to the Customer
only, and shall not be considered granted to any subsidiary or holding
company of the Customer.
3. ADDITIONAL USER SUBSCRIPTIONS
3.1 Subject to clause 3.2, the Customer may, from time to time during any
Subscription Term, purchase additional User Subscriptions in excess of the
number set out in the Supplier’s quotation and the Supplier shall grant
access to the Services and the Data to such additional Authorised Users in
accordance with the provisions of this agreement.
3.2 The Customer shall pay to the Supplier the relevant fees for such
additional User Subscriptions as set out in the Supplier’s quotation and
invoice and, if such additional User Subscriptions are purchased by the
Customer part way through the Initial Subscription Term or any Renewal
Period (as applicable), such fees shall be pro-rated for the remainder of
the Initial Subscription Term or then current Renewal Period (as
applicable).
4. SERVICES
4.1 The Supplier shall, during the Subscription Term, provide the Services
to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the
Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance; and
(b) unscheduled maintenance performed outside Normal Business Hours,
the Supplier will use reasonable endeavours to give the Customer at least 6
Normal Business Hours' notice in advance of any maintenance.
4.3 The Supplier will, as part of the Services and at no additional cost to
the Customer, provide the Customer with the Supplier's standard customer
support services during Normal Business Hours in accordance with the
Supplier's Support Services Policy in effect at the time that the Services
are provided. The Supplier may amend the Support Services Policy in its
sole and absolute discretion from time to time. The Customer may purchase
enhanced support services separately at the Supplier's then current rates.
5. CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to any
Customer Data and shall have sole responsibility for the legality,
reliability, integrity, accuracy and quality of Customer Data.
5.2 The Supplier shall not be responsible for any loss, destruction,
alteration or disclosure of Customer Data however caused.
5.3 The Supplier shall, in providing the Services, comply with its
published Security Policy relating to the security of Customer Data.
5.4 If the Supplier processes any personal data on the Customer's behalf
when performing its obligations under this agreement, the parties record
their intention 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 Authorised Users are located in order to carry out the Services and the
Supplier's other obligations under this agreement;
(b) the Customer shall ensure that the Customer 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 this
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; and
(d) 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.
6. THIRD PARTY DATA PROVIDERS
6.1 The Supplier makes no representation or commitment and shall have no
liability or obligation whatsoever in relation to the Third Party Data nor
shall it have any liability
or obligation whatsoever in relation to any uses to which the Customer may
put any such Third Party Data.
7. SUPPLIER'S OBLIGATIONS
7.1 The Supplier undertakes that the Services will be performed
substantially in accordance with the Proposal and with reasonable skill and
care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any
non-conformance which is caused by use of the Services contrary to the
Supplier's instructions, or modification or alteration of the Services by
any party other than the Supplier or the Supplier's duly authorised
contractors or agents. If the Services do not conform with the foregoing
undertaking, Supplier will, at its expense, use all reasonable commercial
endeavours to correct any such non-conformance promptly, or provide the
Customer with an alternative means of accomplishing the desired
performance. Such correction or substitution constitutes the Customer's
sole and exclusive remedy for any breach of the undertaking set out in
clause 7.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer's use of the Services will be
uninterrupted or error-free; or that the Services, and/or the information
obtained by the Customer through the Services will meet the Customer's
requirements; and
(b) 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.
7.3 This 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 this agreement.
7.4 The Supplier warrants that it has and will maintain all necessary
licences, consents, and permissions necessary for the performance of its
obligations under this agreement.
8. CUSTOMER'S OBLIGATIONS
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the
Supplier;
to enable the Supplier to provide the Services;
(b) comply with all applicable laws and regulations with respect to its
activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement
in a timely and efficient manner. In the event of any delays in the
Customer's provision of such assistance as agreed by the parties, the
Supplier may adjust any agreed timetable or delivery schedule as reasonably
necessary;
(d) ensure that the Authorised Users use the Services in accordance with
the terms and conditions of this agreement and shall be responsible for any
Authorised User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and
permissions necessary for the Supplier, its contractors and agents to
perform their obligations under this agreement, including without
limitation the Services;
(f) ensure that its network and systems comply with the relevant
specifications provided by the Supplier from time to time; and
(g) 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.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay any Subscription Fees to the Supplier for the
User Subscriptions in accordance with this clause 9.
9.2 The Customer shall on the Effective Date provide to the Supplier valid,
up-to-date and complete credit card details or approved purchase order
information acceptable to the Supplier and any other relevant valid,
up-to-date and complete contact and billing details and, if the Customer
provides:
(a) its credit card details to the Supplier, the Customer hereby authorises
the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of
the Initial Subscription Term; and
(ii) subject to clause 14.1, on each anniversary of the Effective Date for
the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to the Supplier, the Supplier
shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of
the Initial Subscription Term; and
(ii) subject to clause 14.1, at least 30 days prior to each anniversary of
the Effective Date for the Subscription Fees payable in respect of the next
Renewal Period,
and the Customer shall pay each invoice as provided for therein.
9.3 If the Supplier has not received payment within 30 days after the due
date, and without prejudice to any other rights and remedies of the
Supplier:
(a) the Supplier may, without liability to the Customer, disable the
Customer's password, account and access to all or part of the Services and
the Supplier shall be under no obligation to provide any or all of the
Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual
rate equal to 2% over the then current base lending rate of the Supplier's
bankers in the UK from time to time, commencing on the due date and
continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 13.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the
Supplier's invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, the Customer exceeds the
amount of disk storage space which may be specified in the Proposal, the
Supplier shall charge the Customer, and the Customer shall pay, the
Supplier's then current excess data storage fees..
9.6 The Supplier shall be entitled to increase the Subscription Fees, the
fees payable in respect of the additional User Subscriptions purchased
pursuant to clause 3.2 and/or the excess storage fees payable pursuant to
clause 9.5 at the start of each Renewal Period upon 90 days' prior notice
to the Customer.
10. PROPRIETARY RIGHTS
The Customer acknowledges and agrees that the Supplier and/or its
licensors, and Third Party Data providers (as the case may be), own all
intellectual property rights in the Data and that the Supplier owns all
intellectual property rights in the Services. Except as expressly stated
herein, this 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 Services, the Data, or Third Party Data.
11. CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the
other party in order to perform its obligations under this 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 this
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 this
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 Services, and the
results of any performance tests of the 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 this agreement, however
arising.
11.8 No party shall make, or permit any person to make, any public
announcement concerning this 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 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,
provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the
defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 The Supplier shall defend the Customer, its officers, directors and
employees against any claim that the Services infringe any United Kingdom
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 sole authority to defend or 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 Services, replace or
modify the Services so that they become non-infringing or, if such remedies
are not reasonably available, terminate this 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 Services by anyone other than the Supplier; or
(b) the Customer's use of the Services or Data in a manner contrary to the
Proposal; or
(c) the Customer's use of the Services or Data after notice of the alleged
or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing and clause 13.4(b) state the Customer's sole and
exclusive rights and remedies, and the Supplier's (including the Supplier's
employees', agents' and sub-
contractors') entire obligations and liability, for infringement of any
patent, copyright, trade mark, database right or right of confidentiality.
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, agents
and sub-contractors) to the Customer:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Customer of the Services and Data 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 this agreement.
13.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the
use of the Services and the Data 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 Services, or any
actions taken by the Supplier at the Customer's direction;
(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 this agreement; and
(c) the Services and the Data are provided to the Customer on an "as is"
basis.
13.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and 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 any loss of profits, loss of business,
depletion of goodwill and/or similar losses or loss or corruption of data
or information, or pure economic loss, or for any special, indirect or
consequential loss, costs, damages, charges or expenses however arising
under this agreement; and
(b) the Supplier's total aggregate liability in contract (including in
respect of the indemnity at clause 12.2), tort (including negligence or
breach of statutory duty), misrepresentation, restitution or otherwise,
arising in connection with the performance or contemplated performance of
this agreement shall be
limited to 50% of the total Subscription Fees paid for the User
Subscriptions during the 12 months immediately preceding the date on which
the claim arose.
14. TERM AND TERMINATION
14.1 This agreement shall, unless otherwise terminated as provided in this
clause 14, commence on the Effective Date and shall continue for the
Initial Subscription Term and, thereafter, this agreement shall be
automatically renewed for successive periods of one month (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 Subscription Term or any
Renewal Period, in which case this agreement shall terminate upon the
expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this
agreement;
and the Initial Subscription Term together with any subsequent Renewal
Periods shall constitute the Subscription Term.
14.2 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:
(a) 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 60 days after
being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this
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 repeatedly breaches any of the terms of this agreement
in such a manner as to reasonably justify the opinion that its conduct is
inconsistent with it having the intention or ability to give effect to the
terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts
or is unable to pay its debts as they fall due or admits inability to pay
its debts or is deemed unable to pay its debts within the meaning of
section 123 of the Insolvency Act 1986 ;
(e) the other party commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a proposal
for or enters into any compromise or arrangement with its creditors other
than for the sole purpose of a scheme for a solvent amalgamation of that
other party with one or more other companies or the solvent reconstruction
of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an
order is made, for or in connection with the winding up of that other party
other than for the sole purpose of a scheme for a solvent amalgamation of
that other party with one or more other companies or the solvent
reconstruction of that other party;
(g) an application is made to court, or an order is made, for the
appointment of an administrator, or if a notice of intention to appoint an
administrator is given or if an administrator is appointed, over the other
party;
(h) the holder of a qualifying floating charge over the assets of that
other party has become entitled to appoint or has appointed an
administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the
other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes
possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part of
the other party's assets and such attachment or process is not discharged
within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other
party in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in clause 14.2(d) to
clause 14.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease,
carrying on all or a substantial part of its business.
14.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any data or other
items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer
Data in its possession and the Customer shall pay all reasonable expenses
incurred by the Supplier in disposing of Customer Data; 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 the agreement which existed at or
before the date of termination shall not be affected or prejudiced.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement
if it is prevented from or delayed in performing its obligations under this
agreement, or from carrying on its business, by acts, events, omissions or
accidents beyond its reasonable control, including, without limitation,
strikes, lock-outs or other industrial disputes
(whether involving the workforce of the Supplier or any other party),
failure of a utility service or transport or telecommunications network,
act of God, war, riot, civil commotion, malicious damage, compliance with
any law or governmental order, rule, regulation or direction, accident,
breakdown of plant or machinery, fire, flood, storm or default of suppliers
or sub-contractors, provided that the Customer is notified of such an event
and its expected duration.
16. CONFLICT
If there is an inconsistency between any of the provisions in the main body
of this agreement and the Supplier’s quotations and invoices, the
provisions in the main body of this agreement shall prevail.
17. VARIATION
No variation of this agreement shall be effective unless it is in writing
and signed by the parties (or their authorised representatives).
18. 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.
19. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies
provided under this agreement are in addition to, and not exclusive of, any
rights or remedies provided by law.
20. SEVERANCE
20.1 If any provision (or part of a provision) of this agreement is found
by any court or administrative body of competent jurisdiction to be
invalid, unenforceable or illegal, the other provisions shall remain in
force.
20.2 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.
21. ENTIRE AGREEMENT
21.1 This agreement, and any documents referred to in it, constitute the
whole agreement between the parties and supersede any previous arrangement,
understanding or agreement between them relating to the subject matter they
cover.
21.2 Each of the parties acknowledges and agrees that in entering into this
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 this agreement or not) relating to the
subject matter of this agreement, other than as expressly set out in this
agreement.
22. ASSIGNMENT
22.1 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 this agreement.
22.2 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
this agreement.
23. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a
partnership between the parties, or authorise either party to act as agent
for the other, and neither party shall have the authority to act in the
name or on behalf of or otherwise to bind the other in any way (including,
but not limited to, the making of any representation or warranty, the
assumption of any obligation or liability and the exercise of any right or
power).
24. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other
than the parties to this agreement and, where applicable, their successors
and permitted assigns) pursuant to the Contracts (Rights of Third Parties)
Act 1999.
25. NOTICES
25.1 Any notice required to be given under this 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 such address as may have
been notified by that party for such purposes.
25.2 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.
26. GOVERNING LAW
This 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.
27. 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 this agreement or its subject matter or formation
(including non-contractual disputes or claims).