Business terms & conditions
Last updated 28th March 2023.
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 13 (LIMITATION OF LIABILITY)
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Active User: an Authorised User who has created or submitted an expense or receipt using the relevant Subscription Service. A user is not an active user if they have simply signed on, created a report, approved an expense or managed the account.
Active User Fees: the charges payable by the Customer to the Supplier for the provision of the relevant Subscription Services as set out in the Proposal and as calculated in relation to a Billing Period in accordance with clause 9.5;
Additional Services: any additional services detailed in the Proposal;
Additional Service Fees: the charges payable by the Customer to the Supplier for the provision of Additional Services (if applicable) as set out in the Proposal;
Agreement: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions;
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the relevant Subscription Services and the Documentation, including the Active Users;
Billing Period: each period of a calendar month running consecutively with the first billing period commencing on the Effective Billing Date;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Conditions: these terms and conditions as amended from time to time in accordance with clause 17;
Confidential Information: any information that would be regarded as confidential by a reasonable business person relating to:
a) business, affairs, financial or trading position, assets, intellectual property rights, customers, clients, suppliers, employees, plans, operations, processes, products, intentions or market opportunities of the disclosing party;
b) the know-how, designs, trade secrets, technical information or software of the disclosing party; and
c) information identified as Confidential Information in clause 11.4 or clause 11.5.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: have the meaning given to them in the Data Protection Legislation;
Customer: the person or firm who purchases Services from the Supplier.
Customer Data: the data inputted by the Customer, Authorised Users or the Supplier on the Customer's behalf for the purpose of using the Subscription Services or facilitating the Customer's use of the Subscription Services;
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 (DPA), the UK GDPR (which has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);
Documentation: the documentation made available to the Customer by the Supplier online via www.expensein.com and the companion mobile application as notified by the Supplier to the Customer from time to time which set out a description of the relevant Subscription Services and the user instructions for those Subscription Services;
Effective Billing Date: the date of completion of the Implementation Services or, if no Implementation Services are provided under this Agreement, the Effective Date;
Fees: the Implementation Fees, the Minimum Fee, the Active User Fees, the Subscription Fees and the Additional Service Fees;
Group Company: in relation to a company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group;
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time;
Implementation Fees: the charges payable by the Customer to the Supplier for Implementation Services as specified in the Proposal;
Implementation Services: those services provided by ExpenseIn’s Implementation team to assist with the initial set-up of the Subscription Services. This may include the configuration, data import, technical mapping, and administrative training prior to the Customer’s use of the Subscription Services. Implementation Services may be delivered via email, virtual meetings, and live chat;
Minimum Fee: the minimum fee payable by the Customer to the Supplier for the provision of the relevant Subscription Services in any Billing Period, as set out in the Proposal;
Normal Business Hours: 8.30 am to 5.30 pm local UK time, each Business Day;
Order: the Customer's written acceptance of the Proposal, which must be in the form of the billing form provided by the Supplier to the Customer for this purpose;
Proposal: the Supplier’s quotation for the Services, which will set out a description of the Services to be provided and the Fees for those Services, to be paid by the Customer;
Services: the Subscription Services, the Implementation Services and any Additional Services;
Software: the online software applications, including mobile applications, provided by the Supplier as part of the Subscription Services;
Subscription Fees: the charges for the relevant Subscription Services which are not Active User Fees or the Minimum Fee, payable by the Customer to the Supplier in a particular Billing Period;
Subscription Services: the Software subscription services provided by the Supplier to the Customer under this Agreement via www.expensein.com and the companion mobile application as notified to the Customer by the Supplier from time to time, as more particularly described in the Proposal and the Documentation;
Supplier: Mobile Dynamics Limited, trading as ExpenseIn, incorporated and registered in England and Wales with company number 09456735 whose registered office is at 4th Floor, The Anchorage, 34 Bridge Street, Reading, RG1 2LU;
User Subscriptions: the user subscriptions which entitle Authorised Users to access and use the Subscription Services and the Documentation 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;
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.2 Clause headings shall not affect the interpretation of this Agreement.
1.3 References to clauses are to the clauses of these Conditions.
1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under it from time to time.
1.9 A reference to writing or written includes email.
1.10 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.
1.11 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order (which may include by way of confirmation that the Customer has been set up as a customer on the Supplier’s system), at which point and on which date the Agreement shall come into existence (Effective Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, or on the Supplier’s website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. User subscriptions
3.1 Subject to the Customer paying for the Services in accordance with clause 9, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences (subject to clause 3.8), to permit the Authorised Users to use the Subscription Services and the Documentation during the Agreement Term (as defined in clause 14.2) solely for the Customer's internal business operations.
3.2 In the event the Customer relies on clause 3.8 to sublicence the Services to any of its Affiliates from time to time, the employees, directors and other staff members of that Affiliate shall become Authorised Users.
3.3 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for their use of the Subscription Services and that each Authorised User shall keep their password confidential.
3.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services that:
3.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.4.2 facilitates illegal activity;
3.4.3 depicts sexually explicit images;
3.4.4 promotes unlawful violence;
3.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.4.6 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 3.4.
3.5 The Customer shall not:
3.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(a) 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 Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.5.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3.5.3 use the Services and/or Documentation to provide services to third parties; or
3.5.4 subject to clause 22.1 and clause 3.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
3.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or
3.5.6 introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.7 Subject to clause 3.8, the rights provided under this clause 3 are granted to the Customer only.
3.8 In the event the parties agree in writing that the Customer may give access to the Services and/or the Documentation to the Customer’s Group Companies, the Customer may do so by way of sublicence to each Group Company, provided that the Customer shall remain responsible for each Group Company’s compliance with the terms of this Agreement. The Customer shall remain responsible for any acts and omissions of the Customer’s Group Companies as if those acts and omissions were its own.
4.1 The Supplier shall, during the Agreement Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Subscription Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 8.00 pm to 2.00 am UK time and at weekends and UK public holidays; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
4.3 The Supplier will, as part of the Subscription Services and at no additional cost to the Customer, provide the Customer with the Supplier's then current online and telephone support services during Normal Business Hours. The Customer may purchase onsite support services separately at the Supplier's then current rates.
4.4 To prevent risk of abuse the Supplier reserves the right to cap the number of receipts scanned for any one Authorised User in any billing period to 200 receipts.
5. Customer data
5.1 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.
5.2 In supplying the Services to the Customer under this Agreement the Supplier may need to process personal data on the Customer's behalf. Accordingly, the parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor of that personal data. Clause 5.3 sets out the scope, nature and purpose of processing by the Supplier, clause 5.6.6 sets out the duration of the processing and clause 5.4 sets out the types of personal data and categories of data subject.
5.3 The scope, nature and purpose of the Supplier’s processing of personal data on the Customer’s behalf under this Agreement is to enable the Supplier to provide the Services to the Customer.
5.4 The types of personal data and categories of data subject which the Supplier may process on the Customer’s behalf under this Agreement are:
5.4.1 the name, home address, email address, bank account details and employee IP address of Authorised Users;
5.4.2 information that may be contained within expense receipts to the extent this includes personal data of Active Users;
5.4.3 vehicle and driver documentation as required by the duty of care module (if enabled) including driving licence and business insurance details;
5.4.4 custom field data, to the extent this includes personal data.
5.5 Each party shall comply with the obligations imposed on it by applicable Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
5.6 Without prejudice to the generality of clause 5.5, the Supplier shall, in relation to any personal data it processes on the Customer’s behalf under this Agreement:
5.6.1 process the personal data only on the documented instructions of the Customer as set out in this Agreement, the Proposal and the Documentation, unless the Supplier is required by applicable law to otherwise process that personal data. Where the Supplier is relying on applicable law as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the applicable law, unless the applicable law prohibits the Supplier from so notifying the Customer;
5.6.2 ensure that is has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data or its accidental loss or destruction of, or damage to the personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
5.6.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
5.6.4 assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.6.5 notify the Customer without undue delay on becoming aware of a personal data breach;
5.6.6 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by applicable law to store the Personal Data; and
5.6.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
5.7 The Customer consents to the Supplier appointing third-party processors of Personal Data under this Agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.7.
5.8 The Customer agrees that the Supplier may transfer personal data to countries outside the United Kingdom for the purpose of providing the Services provided that, where applicable, all transfers by the Supplier of personal data to such recipients are in accordance with such safeguards or other mechanism(s) for such transfers of personal data as may be permitted under the Data Protection Laws from time to time, subject to clause 5.9.
5.9 Where the Customer requires the Supplier to transfer personal data for the purpose of providing the Services to a country outside the United Kingdom which is not subject to an adequacy regulation under the Data Protection Laws then, if and when necessary to comply with the Data Protection Laws:
5.9.1 the Customer will enter into with the applicable third party recipient of the personal data, standard data protection clauses authorised under the Data Protection Laws for the international transfer of personal data that provide sufficient safeguards for the relevant transfer, and will provide evidence to the Supplier that it has done so, on request; and
5.9.2 where the data protection clauses referred to in clause 5.9.1 are not entered into for any reason, or where otherwise required to comply with applicable law (including Data Protection Legislation), the Customer will procure that, prior to the transfer, the relevant data subjects provide valid consent to the transfer for the purposes of the Data Protection Legislation, and the Customer will provide evidence of such consents to the Supplier on request.
5.10 The Customer shall ensure that:
5.10.1 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; and
5.10.2 all instructions given by it to the Supplier in respect of personal data will at all times be in accordance with Data Protection Legislation.
6. Third party providers
7. Supplier's obligations
7.1 The Supplier undertakes that the Subscription Services will be performed substantially in accordance with the Documentation, the Implementation Services will be performed substantially in accordance with their description in this Agreement, and any Additional Services will be performed substantially in accordance with their description in the Proposal, and all Services will be performed 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.
7.3 The Supplier:
7.3.1 does not warrant that:
(a) the Customer's use of the Subscription Services will be uninterrupted or error-free;
(b) the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;
(c) the Software or the Subscription Services will be free from Vulnerabilities or Viruses; or
(d) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements; and
7.3.2 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, except as caused by the Supplier’s breach of clause 5, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 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.
7.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7.6 The Supplier shall follow its standard archiving procedures for Customer Data from time to time,
7.7 The Customer shall regularly download and back up the Customer Data on its own systems.
7.8 Provided the Supplier has complied with the terms of clause 7.6 and clauses 5.6 to 5.9, the Customer's sole and exclusive remedy against the Supplier for any loss or damage to Customer Data, shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure it followed under clause 7.6. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
8. Customer's obligations
8.1 The Customer shall:
8.1.1 provide the Supplier with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be reasonably required by the Supplier;
in order to provide the Services, including Customer Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3 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;
8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
8.1.5 ensure that its network and systems comply with any relevant specifications provided by the Supplier from time to time; and
8.1.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the internet.
9. Charges and payment
9.1 In consideration for the provision of the Implementation Services by the Supplier, the Customer shall pay the Implementation Fees.
9.2 In consideration for the provision of the Subscription Services by the Supplier, the Customer shall pay the Minimum Fee, any Subscription Fees and, if and when applicable, the Active User Fees.
9.3 In consideration for the provision of any Additional Services by the Supplier, the Customer shall pay the Additional Service Fees.
9.4 The Supplier shall invoice the Customer:
9.4.1 before the commencement of the Implementation Services, for the Implementation Fees;
9.4.2 in advance of each Billing Period for the Minimum Fee; and
9.4.3 at the end of each Billing Period for any Active User Fees, Subscription Fees and/or Additional Service Fees.
9.5 The Active User Fees payable by the Customer in each Billing Period shall be calculated by multiplying the number of Active Users during that Billing Period by the price per Active User, as set out in the Proposal, and deducting the Minimum Fee paid in advance by the Customer under clause 9.4.2.
9.6 The Customer shall pay all invoices submitted to it by the Supplier by the due date for that invoice specified in the Proposal to a bank account nominated in writing by the Supplier from time to time. If no due date is specified in the Proposal for a particular invoice, the Customer shall pay that invoice within 14 days after the date of such invoice.
9.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this Agreement by the due date (except for any amount disputed by the Customer in good faith):
9.7.1 the Supplier may, without liability to the Customer, disable the Customer's (and / or any Authorised User’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 sum(s) concerned remain unpaid; and
9.7.2 the Customer shall pay interest on the overdue sum. Interest under this clause 9.7.2 shall accrue on a daily basis on such due amounts at an annual rate equal to 3% 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 payment of the overdue sum, whether before or after judgment.
9.8 All amounts and Fees stated or referred to in this Agreement:
9.8.1 shall be paid in pounds sterling;
9.8.2 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate; and
9.8.3 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.9 After the expiry of one calendar year from the Effective Date, the Supplier may increase the Fees in accordance with the process set out below:
9.9.1 where the Supplier proposes to increase any Fees, it shall provide the Customer with at least 60 days prior written notice of the amount of the increase and the date from which it will take effect (the Fees Increase Date);
9.9.2 in the event the Customer does not accept an increase to the Fees, notified to it by the Supplier under clause 9.9.1 above, the Customer may terminate this Agreement by giving at least five (5) Business Days’ written notice to the Supplier, such notice not to expire before the Fees Increase Date;
9.9.3 in the event the Customer notifies the Supplier that it wishes to terminate the Agreement under clause 9.9.2 above, the Agreement will terminate on the Fees Increase Date and
9.9.4 unless and until the Agreement terminates under clause 9.9.3 above, the Fees shall be increased on and from the Fees Increase Date in line with the proposed increase as notified to the Customer by the Supplier under clause 9.9.1 and the Proposal shall be deemed amended accordingly.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in and to the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any 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 or the Documentation.
10.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under and in accordance with the terms of this Agreement.
11.1 Each party may be given access to Confidential Information by the other party in order to perform its obligations or exercise its rights under this Agreement. A party's Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes generally available to the public other than as a result of disclosure by the receiving party in breach of this clause 11;
11.1.2 was available to the other party on a non-confidential basis before the disclosure by the disclosing party;
11.1.3 was, is or becomes lawfully available to the receiving party on a non-confidential basis by a third party who, to the receiving party's knowledge, is not under a restriction on disclosure; or
11.1.4 is independently developed by the receiving party independently of the information disclosed by the disclosing party, as shown by written evidence.
11.2 Subject to clause 11.3, each party shall hold the other's Confidential Information in confidence and shall not:
11.2.1 use the disclosing party’s Confidential Information except for the purpose of performing its obligations or exercising its rights under or in connection with this Agreement (Permitted Purpose); or
11.2.2 make such Confidential Information available to any third party, except as permitted by this clause 11.
11.3 A party may disclose the other party’s Confidential Information to:
11.3.1 its employees, subcontractors, agents and representatives who need to know such Confidential Information for the Permitted Purpose, provided that it ensures such employees, subcontractors, agents and representatives are under a binding obligation to keep that Confidential Information confidential; and
11.3.2 the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.3.2, it takes into account the reasonable requests of the disclosing party in relation to the content of such disclosure.
11.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
11.5 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.6 Subject to clause 11.7, neither party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by applicable law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.7 The Supplier shall be allowed (and the Customer grants the Supplier a licence to that effect) to use and publish the Customer’s name and logo for marketing and adverting purposes (including but not limited to publication on the Supplier’s website and marketing materials) without obtaining the Customer’s prior consent.
11.8 The obligations on the Supplier under this clause 11 in relation to Customer Data shall continue to apply after termination or expiry of this Agreement.
11.9 Subject to clause 11.8, the provisions of this clause 11 shall survive for a period of 2 years from termination or expiry of this Agreement.
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 Subscription Services and/or Documentation in breach of the terms of this Agreement, provided that:
12.1.1 the Customer is given prompt notice of any such claim;
12.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
12.1.3 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 Subscription Services or Documentation infringes any United Kingdom copyright, trade mark, database right or right of confidentiality of a third party, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1 the Supplier is given prompt notice of any such claim;
12.2.2 the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
12.2.3 the Supplier is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim under clause 12.2, the Supplier may procure the right for the Customer to continue using the Subscription Services, replace or modify the Subscription 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:
12.4.1 a modification of the Subscription Services or Documentation by anyone other than the Supplier; or
12.4.2 the Customer's use of the Subscription Services or Documentation in a manner contrary to the reasonable instructions given to the Customer by the Supplier; or
12.4.3 the Customer's use of the Subscription Services or Documentation after the Customer has received notice of an alleged or actual infringement from the Supplier or any appropriate. third party.
12.5 The foregoing and clause 13.5 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: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1 Except as expressly and specifically provided in this Agreement:
13.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services 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 Services (including the Customer Data), or any actions taken by the Supplier at the Customer's direction; and
13.1.2 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.
13.2 Nothing in this Agreement excludes or limits any liability which cannot be excluded or limited by law including liability for:
13.2.1 death or personal injury caused by the Supplier's negligence; or
13.2.2 fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.2, 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, loss of goodwill and/or similar losses, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in connection with this Agreement.
13.4 Subject to clause 13.1and clause 13.2 and clause13.5, the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with this Agreement shall be limited to the amount paid or payable by Customer under this Agreement in the year in which the cause of action arose.
13.5 Subject to clause 13.1 and clause 13.2, the Supplier's total liability to the Customer 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 out of or in connection with the Supplier's failure to comply with its data processing obligations under clause 5 and the Supplier’s failure to comply with its obligation under clause 10 shall not exceed £50,000 (fifty thousand pounds sterling) in the aggregate.
14. Term and Termination
14.1 This Agreement shall, unless otherwise terminated in accordance with its terms, commence on the Effective Date and continue for a period of one calendar month (“Initial Term”) and, thereafter, this Agreement shall be automatically renewed for successive periods of one calendar month (each a “Renewal Period”), unless and until either party gives written notice of termination to the other party at least 5 (five) Business Days before the end of the Initial Term or any Renewal Period (as applicable), in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.
14.2 The Initial Term together with any subsequent Renewal Periods shall constitute the Agreement Term.
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:
14.3.1 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 15 days after being notified in writing to make such payment;
14.3.2 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 15 days after being notified in writing to do so;
14.3.3 the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 14.3.3;
14.3.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on business; or
14.3.5 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
14.3.6 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.
14.4 On termination of this Agreement for any reason:
14.4.1 all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
14.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.4.3 subject to the full payment of any outstanding Fees, the Customer will have access to Customer Data for a period of three months after termination of this Agreement during which time the Customer will be allowed to transfer all the Customer Data to its systems and after which time the Supplier may destroy or otherwise dispose of any Customer Data in its possession; and
14.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to and including 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
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (except for an obligation to pay) if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 14 days, either party may terminate this Agreement by giving 14 days' written notice to the affected party.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Proposal or the Order, the provisions in the main body of this Agreement shall prevail over the Proposal and the Order and the provisions of the Proposal shall prevail over the Order.
17.1 The Supplier may vary these terms and conditions at any time by giving the Customer 30 days’ prior notice in writing.
17.2 Subject to clause 17.1 and clause 9.9, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 No failure or delay to exercise, or single or partial exercise of, any right or remedy shall waive that or any other right or remedy, nor shall it 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.
20.1 If any provision (or part of a provision) of this Agreement is or becomes invalid, unenforceable or illegal, it shall be deemed deleted or modified to the minimum extent necessary to render it valid, legal and enforceable and give effect to the commercial intention of the parties, but that shall not affect the validity and enforceability of the rest of this Agreement.
20.2 Any deletion or modification of a provision under clause 20.1 shall not affect the validity and enforceability of the rest of the Agreement.
21. Entire Agreement
21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21.4 Nothing in this clause 21 limits or excludes any liability for fraud.
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, novate, 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
23.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Third party rights
24.1 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
24.2 The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
25.1 Any notice required to be given under this Agreement shall be in writing and shall be:
25.1.1 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 this Agreement, its registered office address from time to time, or such other address as may have been notified by that party for such purposes; or
25.1.2 sent by email to the other party's email address as set out in this Agreement:
for the Supplier: firstname.lastname@example.org; and
for the Customer: the email address specified in the Order, unless the Customer has notified the Supplier in writing of a different email address for notices, in accordance with this clause 25.
25.2 A notice shall be deemed to have been received:
25.2.1 if delivered by hand or by recorded delivery post, at the time the notice is left at the proper address;
25.2.2 if sent by pre-paid first-class post, at 09:00am on the second Business Day after posting; or
25.2.3 if sent by email, at the time of transmission (as shown by the timed printout obtained by the sender),
or, if the time of delivery or transmission under clause 25.2.1 or 25.2.3 falls outside of Normal Business Hours in the place of receipt, when Normal Business Hours resume.
This clause 25 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Governing law
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.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
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