BUILD BRANDS WITH SUBSTANCE LIMITED
CLIENT CONTRACT TERMS AND CONDITIONS
The Client's attention is particularly drawn to the provisions of clause 13 (Limitation of liability). The Supplier’s charges may be subject to periodic increases under clause 9.6.
The following definitions and rules of interpretation apply in these Conditions.
Authorised Users: those employees, agents and independent contractors of the Client and the End User Organisation who are authorised by the Client to use the System Services and the Documentation and receive System Reports, as further described in clause 3.2.
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: 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.
Client: the Client entering into the Contract with the Supplier.
Client Data: the data inputted by the Client, any End User Organisation, Authorised Users, or the Supplier on the Client's behalf for the purpose of using the System Services or facilitating the use of the System Services.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16 (Variation).
Contract: the contract between the Supplier and the Client for the supply of System Services, incorporating these Conditions, as described in clause 2.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other applicable legislation relating to personal data 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); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Documentation: the documentation made available by the Supplier online via https://www.buildbrandswithsubstance.com (or such other web address notified by the Supplier to the Client from time to time) which sets out a description of the System Services, Licence Packages, Licence Fees and the user instructions for the System Services.
End User Organisation: the Client’s end user customer(s) permitted to access the System, input Client Data and receive System Reports under the terms of the Licence Package.
Excess Storage Fees: the fees payable by the Client to the Supplier for excess data storage provided (if any) as envisaged in clause 9.5.
Initial Term: 12 calendar months beginning on the Licence Commencement Date.
Licence Commencement Date: means the date the Contract is made, as described in clause 2.2.
Licence Fees: the licence fees payable by the Client to the Supplier for the relevant Licence Package selected when the Contract is made, payable in accordance with clause 9.
Licence Package refers to each of the Supplier’s System Services licence packages described in the Documentation (called ‘Independent’ or ‘Leadership’ or ‘Subscription’) entitling the relevant Authorised User(s) to access and use the System Services and the Documentation in accordance with the Contract.
Licence Term: means the Fixed Licence Term or the Renewable Licence Term, as the case may be (based on which Licence Package was selected by the Client for the Contract) by reference to clause 14.1.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Onboarding Fee: the fees payable by the Client to the Supplier for the initial onboarding of the Client to receive the System Services (if any), payable in accordance with clause 9.
Renewal Term: the period described in clause 14.1.
Supplier: means Build Brands with Substance Limited, registered in England and Wales with company number 13488462 whose registered office is at 154a Hallgate, Cottingham, United Kingdom HU16 4BD.
Supplier Site: means the Supplier’s website at https://www.buildbrandswithsubstance.com (or any other website notified to the Client by the Supplier from time to time).
System: refers to the Supplier’s strategic insight application software (called ‘Substance’), and associated data, content, documents, materials and media which is contained on and/or accessible via the Supplier Site, as more particularly described in the Documentation.
System Report: a strategic insight report relating to an End User Organisation generated by the System using inputs from Authorised User(s).
System Services: the services provided by the Supplier under the Contract via the System, including provision of System Reports and associated services, as more particularly described in the Documentation.
Technical Support Fees: the fees payable by the Client to the Supplier for technical support provided (if any) as envisaged in clause 4.3, payable in accordance with clause 9.
Training Fees: the fees payable by the Client to the Supplier for the training services provided (if any) as envisaged in clause 4.4, payable in accordance with clause 9.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK, including the General Data Protection Regulation ((EU) 2016/679) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
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 construed accordingly.
- Clause headings shall not affect the interpretation of these Conditions.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural, and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- References to clauses are to the clauses of this these Conditions.
- 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.
- A reference to writing or written includes email but not fax.
2. Basis of contract
- The Client's submission of an order or request to purchase a Licence Package from the Supplier through the Supplier Site constitutes an offer by the Client to purchase System Services in accordance with these Conditions.
- The Client's order or request to purchase a Licence Package shall only be deemed to be accepted when the Supplier confirms this in writing to the Client, at which point and on which date the Contract shall come into existence.
- Any advertising issued by the Supplier or which is made available to the Client (except for the Documentation) are issued or published for the sole purpose of giving an approximate idea of the System Services described in them. They shall not form part of the Contract or have any contractual force.
- These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Licence Packages
- Subject to the Client purchasing the relevant Licence Package in accordance with clause 9.1, the restrictions set out in this clause 3 and the other terms and conditions of the Contract, the Supplier hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the permitted Authorised User(s) to use the System Services and the Documentation during the Licence Term.
- In relation to the Authorised Users, the Client undertakes that:
- the Client’s Authorised Users shall be limited to the employees and sub-contractors of the Client (and shall exclude any third party creative design or branding agencies);
- in addition to the Client’s Authorised Users, the maximum number of End User
Organisation Authorised Users shall not exceed the number permitted under the Licence
Package it has purchased from time to time, these being:
- ‘Individual’ Licence Package – 1 Authorised User;
- ‘Leadership’ Licence Package – 10 Authorised Users; and
- ‘Subscription’ Licence Package – unlimited Authorised Users.
- it will not allow any ‘Individual’ or ‘Leadership’ Licence Package to be used by more than one individual End User Organisation (the ‘Subscription’ Licence Package may be used with an unlimited number of End User Organisations);
- it will allow Licence Packages to be used only for its own End User Organisation(s) and shall not permit any third party use;
- each Authorised User shall keep a secure password for their use of the System Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
- each Authorised User shall be required to accept the Supplier’s System User Conditions in the then current form when accessing the System;
- 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;
- it shall permit the Supplier or the Supplier's designated auditor to audit the System Services in order to establish the name and password of each Authorised User and the Client's data processing facilities to audit compliance with the Contract. Each such audit may be conducted no more than once per quarter, 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 Client's normal conduct of business;
- if any of the audits referred to in clause 3.2(h) 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 Client shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
- if any of the audits referred to in clause 3.2(h) reveal that the Client has underpaid Licence Fees to the Supplier, then without prejudice to the Supplier's other rights, the Client shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the Supplier’s then current rates within 10 Business Days of the date of the relevant audit.
- The Client and End User Organisations shall not access, store, distribute or transmit any
Viruses, or any material during the course of its use of the System Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
- The Client shall not:
- 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 the
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the System and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the System; or
- access all or any part of the System Services and Documentation in order to build a product or service which competes with the System Services and/or the Documentation; or
- use the System Services and/or Documentation to provide services to third parties (except Third Party Organisation(s) permitted under the relevant Licence Package); or
- subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the System Services and/or Documentation available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the System Services and/or Documentation, other than as provided under this clause 3; or
- introduce, or permit the introduction of, any Virus into the Supplier's network and information systems.
- 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 the Contract:
- The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the System Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
- The rights provided under this clause 3 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
4. System Services, Support & Training
- The Supplier shall, during the Licence Term, provide the System Services and make available the Documentation to Authorised Users on and subject to the terms of the Contract.
- The Supplier shall use commercially reasonable endeavours to make the System Services available
24 hours a day, seven days a week, except for:
- planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
- unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Client at least 6 Normal Business Hours' notice in advance.
- The Supplier may by agreement with the Client provide technical support services relating to the System (either standard or enhanced support) during Normal Business Hours as part of the System Services, subject to the payment by the Client of Technical Support Fees at the Supplier's then current rates.
- The Supplier may by agreement with the Client provide remote training services on the effective use of the System (either standard or enhanced training) during Normal Business Hours as part of the System Services, subject to the payment by the Client of Training Fees at the Supplier's then current rates.
5. Client data, back-ups & privacy
- The Client (or where appropriate the End User Organisation) shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
- The Supplier shall follow its standard archiving procedures for Client Data, as may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier in accordance with the archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up for which it shall remain fully liable under clause 5.9).
- Both parties will comply with all applicable requirements of the 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.
- The parties acknowledge that:
- if the Supplier processes any personal data on the Client's (or an End User Organisation’s) behalf when performing its obligations under the Contract, the Client (or where applicable the End User Organisation) is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
- the personal data may be transferred or stored outside the EEA or the country where the Client, any End User Organisation and/or the Authorised Users are located in order to carry out the System Services and the Supplier's other obligations under the Contract.
- Without prejudice to the generality of clause 5.4, the Client will ensure that it has the appropriate lawful basis to enable the transfer of the personal data to the Supplier for the duration and purposes of the Contract so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Contract on the Client's (and the End User Organisation’s) behalf.
- Without prejudice to the generality of clause 5.4, the Supplier shall, in relation to any
personal data processed in connection with the performance by the Supplier of its obligations
under the Contract:
- process that personal data only on the documented written instructions of the Client (or where applicable the End User Organisation) unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client;
- not transfer any personal data outside of the European Economic Area and the United
Kingdom unless the following conditions are fulfilled:
- the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
- assist the Client, at the Client'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;
- notify the Client without undue delay on becoming aware of a personal data breach;
- at the written direction of the Client, delete or return personal data and copies thereof to the Client (or where applicable the End User Organisation) on termination of the Contract unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Company if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
- Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, 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).
- The Client consents to the Supplier appointing third-party processors of personal data under the Contract. 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 confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Client 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.
- Either party may, at any time on not less than 30 days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
6. Third party providers
7. Supplier's obligations
- The Supplier undertakes that the System Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is
caused by use of the System Services contrary to the Supplier's instructions, or modification or
alteration of the System Services by any party other than the Supplier or the Supplier's duly
authorised contractors or agents. If the System 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 Client with an alternative means of
accomplishing the desired performance. Such correction or substitution constitutes the Client's
sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
Notwithstanding the foregoing, the Supplier:
- does not warrant that use of the System Services will be uninterrupted or error-free; or that the System Services, Documentation and/or the information obtained through the System Services will meet the Client's (or where applicable the End User Organisation’s) requirements;
- does not warrant that the System or the System Services will be free from Vulnerabilities or Viruses; and
- 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 Client acknowledges that the System Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- The Contract 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 Contract.
- The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
8. Client's obligations
- The Client shall:
- ensure that the terms of its order or request to purchase System Services are complete and accurate;
- provide the Supplier with:
- all necessary co-operation in relation to the Contract; and
- all necessary access to such information as may be required by the Supplier;
- without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
- carry out all other Client responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that its Authorised Users (and use reasonable endeavours to ensure the End User Organisation’s Authorised Users) use the System Services and the Documentation in accordance with the terms and conditions of the Contract and shall be responsible for any of its Authorised Users’ breach of the Contract;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Contract, including without limitation the System Services;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
- The Client (or where applicable the End User Organisation) shall own all right, title and interest in and to all of the Client Data that is not personal data, and the Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
9. Charges and payment
- The Client shall pay to the Supplier in accordance with this clause 9:
- the Licence Fees for the relevant Licence Package;
- the Technical Support Fees (if/where applicable);
- the Training Fees (if/where applicable);
- the Onboarding Fee (if/where applicable); and
- the Excess Storage Fees (if/where applicable).
- The Client shall pay all fees under the Contract online via the payment process provided by the
Supplier’s payment partner Stripe, as directed at the relevant time by the Supplier. Payment
shall be due by the Client:
- where the Client elects to purchase the ‘Independent’ or ‘Leadership’ Licence Package (as described in the Documentation), on the Licence Commencement Date for the applicable Licence Fee, payable in advance in respect of the full 12-month Fixed Licence Term; or
- where the Client elects to purchase the ‘Subscription’ Licence Package (as described in
- on the Licence Commencement Date for the Licence Fees payable in advance in respect of the 12-month Initial Term; and
- at least 30 days prior to the commencement of each 12-month Renewal Term for the Licence Fees payable in advance in respect of that Renewal Term;
- on the Licence Commencement Date for the Onboarding Fee (if/where applicable); and
- on the relevant order date for the Training Fee and/or Technical Support Fees (if/where applicable).
- If the Supplier fails to make payment on the due date, then without prejudice to any other
rights and remedies of the Supplier:
- the Supplier may, without liability to the Client, disable the Authorised Users’ passwords and access to all or part of the System Services and the Supplier shall be under no obligation to provide any or all of the System Services while the amount due remains unpaid; and
- interest 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 fully paid, whether before or after judgment.
- All amounts and fees stated or referred to in the Contract:
- shall be payable in pounds sterling;
- shall be made without set off or any other deduction;
- are non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added at the appropriate rate.
- If, at any time whilst using the System Services, the Client exceeds the amount of disk storage space (if any) specified in the Documentation, the Supplier reserves the right to charge the Client, and the Client shall pay, the Supplier's Excess Storage Fees at the Supplier's then current rates.
- The Supplier shall be entitled to increase the Licence Fees in relation to the ‘Subscription’ Licence Package at the start of each Renewal Term upon prior notice to the Client.
10. Proprietary rights
- The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the System Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Client (or any End User Organisation) 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 System Services or the Documentation.
- The Supplier confirms that it has all the rights in relation to the System Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
- Each party may be given access to Confidential Information from the other party in order to
perform its obligations under the Contract. A party's Confidential Information shall not be
deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and 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 Contract.
- 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 Contract.
- A party may disclose Confidential Information to 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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Client acknowledges that details of the System Services, and the results of any performance tests of the System Services, constitute the Supplier's Confidential Information.
- The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
- No party shall make, or permit any person to make, any public announcement concerning the Contract 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.
- The above provisions of this clause 11 shall survive termination of the Contract, however arising.
- The Client 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 Client's (or its End User
Organisation(s)’) use of the System Services and/or Documentation, provided that:
- the Client is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and
- the Client is given sole authority to defend or settle the claim.
- The Supplier shall defend the Client, its officers, directors and employees against any claim
that the Client's use of the System Services or Documentation in accordance with the Contract
infringes any United Kingdom patent effective as of the Licence Commencement Date, copyright,
trade mark, database right or right of confidentiality, and shall indemnify the Client for any
amounts awarded against the Client in judgment or settlement of such claims, provided that:
- the Supplier is given prompt notice of any such claim;
- the Client 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
- the Supplier is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the System Services, replace or modify the System Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
- In no event shall the Supplier, its employees, agents and sub-contractors be liable to the
Client to the extent that the alleged infringement is based on:
- a modification of the System Services or Documentation by anyone other than the Supplier; or
- the Client's use of the System Services or Documentation in a manner contrary to the instructions given to the Client by the Supplier; or
- the Client's use of the System Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing and clause 13.3(b) state the Client'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
- Except as expressly and specifically provided in the Contract:
- the Client assumes sole responsibility for System Reports and results obtained from the use of the System Services and the Documentation, 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 data provided by the Client or End User Organisation(s) in connection with the System Services, or any actions taken by the Supplier at the Client's or End User Organisation(s)’ direction;
- 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 Contract; and
- the System Services and the Documentation are provided by the Supplier on an "as is" basis.
- Nothing in the Contract excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier's negligence; or
- for fraud or fraudulent misrepresentation.
- Subject to clause 13.1 and 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, 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 the Contract; and
- 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 the Contract shall be limited to the total Licence Fees paid during the 12 months immediately preceding the date on which the claim arose (or where less than 12 months has elapsed during the Licence Term, limited to the total Licence Fees paid during the full period of the Licence Term preceding the date on which the claim arose).
- Nothing in the Contract excludes the liability of the Client for any breach, infringement or misappropriation of the Supplier’s intellectual property rights.
14. Term and termination
- The Contract shall commence on the Licence Commencement Date and shall continue (unless
otherwise terminated as provided in this clause 14) as follows:
- where the Client elects to purchase the ‘Independent’ or ‘Leadership’ Licence Package (as described in the Documentation), it shall continue for a period of 12 months (the Fixed Licence Term) when it shall terminate automatically; or
- where the Client elects to purchase the ‘Subscription’ Licence Package (as described in
the Documentation), it shall continue for a period of 12 months (the Initial Term) and,
thereafter, shall be automatically renewed for successive periods of 12 months (each a
Renewal Term), unless:
- either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Term or any Renewal Term, in which case the Contract shall terminate upon the expiry of the applicable Initial Term or Renewal Term; or
- otherwise terminated in accordance with the provisions of the Contract;
Without affecting any other right or remedy available to it, either party may terminate the
Contract with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of the Contract 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;
- 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;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- 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;
- 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;
- 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 (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company, partnership or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- 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;
- 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;
- 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(c) to clause 14.2(j) (inclusive); or
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- 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 the Contract is in jeopardy.
- On termination of the Contract for any reason:
- all licences granted under the Contract shall immediately terminate and the Client and End User Organisation(s) shall immediately cease all use of the System Services and/or the Documentation;
- 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;
- the Supplier may destroy or otherwise dispose of any of the Client Data in its possession in accordance with clause 5.7(e), unless the Supplier receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and
- 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 Contract 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 Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract, 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 Client is notified of such an event and its expected duration.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
18. Rights and remedies
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
- If any provision or part-provision of the Contract is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. Entire agreement
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Contract 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 the Contract.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
- The Client 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 Contract.
- 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 Contract.
22. No partnership or agency
Nothing in the Contract 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).
23. Third party rights
The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
The Contract may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
- Any notice required to be given under the Contract 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 specified when the Contract is made, or its registered office (in relation to a company), or to such other address as may have been notified to the other party for such purposes.
- 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.
25. Governing law
The Contract 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.
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 Contract or its subject matter or formation (including non-contractual disputes or claims).