Terms and Conditions

OPSYTE Terms and Conditions

These terms and conditions (Terms and Conditions) set out the licence (Licence) which is a legal agreement between you (Customer or you) and Opsyte Online Ltd (company number 11818288)  whose registered office is at Westmead House, Westmead, Farnborough, England, GU14 7LP (Supplier, us or we) for certain of Supplier’s proprietary software, referred to as Opsyte and printed materials and online documents made available to you by us (Documents). The Terms and Conditions (including the Licence) together with the Purchase Authorisation Form agreed between you and us and the Support Services SLA (each as defined below) forms the agreement between us (Agreement) in relation to the licensing and use of the Software, Documents, associated Support Services and any other services we provide to you which are together referred to as the “Services”.

We agree to provide the Services to you on the basis of the Agreement from time to time and it is your responsibility to check any updates. Any changes made to these Terms and Conditions shall be incorporated into the Agreement. We do not sell the Software or Documents to you. We or our licensors remain the owners of the Software and Documents at all times.

IMPORTANT NOTICE TO ALL USERS

By accessing the Software you agree to these Terms and Conditions which will bind you, your employees and other authorised users. Please carefully read these Terms and Conditions  before using the Software. If you do not agree to the Terms and Conditions , you must discontinue your access to the Software immediately.

1.           DEFINITIONS

1.1.       The definitions and rules of interpretation in this clause apply to the Agreement:

Applicable Data Protection Legislation:	a)           To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data. b)           To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier or Customer is subject, which relates to the protection of Personal Data.
Claim:	has the meaning given in clause 9.2.
Confidential Information:	has the meaning given in clause 6.1.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures	as defined in the Applicable Data Protection Legislation.
EU GDPR:	the General Data Protection Regulation ((EU) 2016/679) as it has effect in EU law.
Fee:	the licence fee and other fees payable by you to us under clause 4 and as set out in the Purchase Authorisation Form.
Initial Term:	has the meaning given in clause 2.2.
Intellectual Property Rights:	patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get‐up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know‐how and trade secrets) and any other intellectual property rights, whether registered or unregistered and including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Licensed Venue:	the venues of Customer for which the Software may be used as agreed with Supplier in the Purchase Authorisation Form for which Customer pays the Fee.
Order Date:	the date set out in the Purchase Authorisation Form.
Payment System Fee:	the fee payable by Customer to Supplier for the Payment System feature of the Software as set out in the Purchase Authorisation Form.
Purchase Authorisation Form:	the fully executed form setting out the detail of the fees (including the Fee, Referral Fee and any Payment System Fees) payable and the Licensed Venues which may use the Software and Documents issued by Supplier to you.
Representation:	has the meaning given in clause 12.3.
Representatives:	has the meaning given in clause 6.3.
Software:	the Supplier’s proprietary computer program, referred to as ‘Opsyte’ licensed under the terms of the Licence, which enables a Customer to manage and process customer bookings via the Website.
Support Services SLA:	the schedule attached to the Purchase Authorisation Form which sets out the terms upon which the Support Services will be provided to you by Supplier.
Support Services:	the provision of technical advice and assistance on the Software to Customer by Supplier in accordance with the Support Services SLA.
Term:	the Initial Term and such further extended terms of use of the Software as provided in and in accordance with clause 2.2.
Third Party:	any third party that supplies Third Party Services to the Supplier during the provision of the Services.
Third Party Services:	any services, goods, code or software programs written or provided by a Third Party.
VAT:	value added tax chargeable under applicable law from time to time and any similar additional tax(es).
Warranty Period:	has the meaning given in clause 7.1.
Website:	Supplier’s website, www.opsyte.com, by which the Software is accessed.
UK GDPR:	has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

 

1.2.       Clause headings shall not affect the interpretation of these Terms and Conditions.

1.3.       Unless the context otherwise requires:

1.3.1.    words in the singular shall include the plural and in the plural shall include the singular;

1.3.2.    a reference to a statute or statutory provision is a reference to it as amended, extended or re‐enacted from time to time; and

1.3.3.    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.

1.4.       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.

1.5.       A reference to writing or written includes email.

2.           LICENCE

2.1.       Subject to the Customer’s continuous compliance with the Agreement and payment of the applicable Fee, the Supplier grants to the Customer a non‐exclusive, non‐transferable and limited  licence to use the Software and the Documents for the Licensed Venue(s) in accordance with the Agreement during the Term (unless terminated earlier in accordance with the terms of the Agreement).

2.2.       The initial term of the Agreement is three (3) months from the Order Date (Initial Term). The Customer may terminate the Agreement upon the expiry of the Initial Term by giving the Supplier not less than fourteen (14) days written notice of termination prior to the expiry of the Initial Term. If the Customer does not terminate the Agreement at the end of the Initial Term, the Agreement will continue for a further nine (9) months. The Customer may terminate the Agreement upon expiry of this nine (9) month period by giving the Supplier not less than fourteen (14) days written notice of termination prior to the expiry of the nine (9) month period and if the Customer does not terminate the Agreement at the end of such period, the Agreement will automatically renew for additional twelve (12) month periods until terminated by either party giving not less than fourteen (14) days written notice of termination to the other prior to the expiry of the then current twelve (12) month period. This clause 2.2 is without prejudice to the parties’ rights of termination under clause 11 (Termination) of these Terms and Conditions.

2.3.       The Customer may access the Software via the Website and using an assigned username and password which Supplier shall provide and which is strictly for the use of designated employees or other authorised users of the Customer for the Licensed Venues only. There are no restrictions on the number of Customer’s employees or authorised users at a Licensed Venue who can access the Software or the day or times the Software may be accessed by a Licensed Venue. The Customer shall use the Software only for its internal business purposes at the Licensed Venue(s), for any and associated all tasks for such Licensed Venue(s).

2.4.       The Customer may not use the Software other than as specified in this clause 2 without the prior written consent of the Supplier and the Customer acknowledges that additional fees may be payable on any change of use or increase in Licensed Venues approved by the Supplier.

2.5.       Except as expressly permitted in the Agreement or under applicable law, the Customer undertakes:

2.5.1.    not (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, or create derivative works based on the whole or any part of the Software or Documents nor attempt to do any such thing except to the extent that such actions are permitted by applicable law;

2.5.2.    not to rent, lease, sub‐license, loan, translate, merge, vary or modify the Software or Documents;

2.5.3.    not to make alterations to, or modifications of, the whole or any part of the Software or Documents, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;

2.5.4.    to keep access to the Software and Documents secure and to maintain accurate and up‐ to‐date records of the number and locations of all access rights to the Software at each Licensed Venue; and

2.5.5.    to supervise and control use of the Software and ensure that the Software is used by your employees and authorised users in accordance with the terms of the Agreement.

2.6.       The Third Party Software shall be deemed to be incorporated within the Software for the purposes of the Licence (except where expressly provided to the contrary) and use of the Third Party Software shall be subject to the Third Party Terms.

2.7.       Each party confirms it is acting on its own behalf and not for the benefit of any other person.

2.8.       The Customer shall notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person.

2.9.       Except as otherwise set out in the Agreement, Supplier expressly reserves all rights to the Software, including without limitation, to publish, duplicate, process, use or exploit the Software.

2.10.     Supplier reserves the right at any time to make any improvement, substitution or modification in the design, manufacture or configuration of the Services provided that any such improvement, substitution or modification shall not result in any material change in the functionality or performance of the Services.  

2.11.     Subject to giving written notice to the Customer, the Supplier reserves the right to make any changes to the Documentation and/or the Services which are required to conform with any applicable safety, regulatory or other statutory requirement which do not materially adversely affect the quality or performance of the Services.

3.           SUPPORT SERVICES

Supplier shall provide Support Services for the Software in accordance with the terms of the Support Services SLA. Supplier may access any of the Customer’s data logged on the Software for the purposes of providing Support Services and for obtaining statistical industry analysis. The Supplier shall not change any Customer data or share, sell or pass on any Customer data to any third parties and any Customer data collected on the Customer’s Guests portal or other data added to the Software by the Customer or its employees is solely the property of the Customer.

4.           FEES

4.1.       The Customer shall pay the Fee set out in the Purchase Authorisation Form in full and in cleared funds by direct debit in advance on the first banking day of every month during the Term.

4.2.       The Supplier may increase the price of the Services:

4.2.1.    subject to clause 4.2.2, on an annual basis with effect from each anniversary of the date of the Purchase Authorisation Form in line with the percentage increase in the Retail Prices Index in the preceding twelve (12) month period;

4.2.2.    related to any Third Party Services in line with any increases imposed upon the Supplier by such third parties upon reasonable notice; and/or

4.2.3.    notwithstanding clauses ‎4.2.1 and ‎4.2.3, on giving the Customer thirty (30) days’ notice, to increase the Fees on a bi-annual basis of the date of the Purchase Authorisation Form. If the Client does not agree with this increase, then they may terminate the Agreement at the date the proposed increase takes effect upon no less than fourteen (14) days written notice and before such Fees increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Customer is deemed to have agreed to such Fees increase.

4.3.       All Fees and other sums payable under the Agreement are exclusive of VAT, for which the Customer shall be responsible.

4.4.       If the Customer fails to make any payment due to the Supplier under the Agreement by the due date for payment, then, without limiting the Supplier's remedies under the Agreement, the Supplier shall be entitled to:

4.4.1.    charge Customer interest on the overdue amount at the rate of four percent (4%) per annum above the base rate of National Westminster Bank from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

4.4.2.    suspend the Services in whole or in part until payment has been made in full.

5.           Third party providers

5.1.       The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier.   The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website.  The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

5.2.       The Supplier expressly excludes any and all liability in relation to the provision of Third Party Services.

5.3.       Except as expressly provided in the Agreement, the Customer assumes sole responsibility for results obtained from the use of any Third Party Services and for conclusions drawn from such use. The Supplier shall have no liability for any inaccuracies, errors and/or omissions in any information, instructions or other outputs provided in connection with such Third Party Services or any actions taken by the Supplier at the Customer’s direction.

6.           CONFIDENTIALITY

6.1.       Except as permitted by clause 6.2, each party undertakes that it shall not at any time during the Term and for a period of two (2) years after termination or expiration of the Agreement disclose to any third party any confidential information disclosed to it by the other party concerning the business and/or affairs of the other party, including without limitation information relating to a party's operations, technical or commercial know‐how, specifications, inventions, processes or initiatives, plans, product information, pricing information, know‐how, designs, trade secrets, software, documents, data and information which, when provided by one party to the other: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within ten (10) days; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure (Confidential Information). Supplier Confidential Information includes without limitation the Software and Documents.

6.2.       Each party agrees that it shall take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorised under the Agreement. Such measures shall include, but not be limited to, the highest degree of care that the receiving party utilises to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. Each party agrees to notify the other in writing of any actual or suspected misuse, misappropriation or unauthorised disclosure of Confidential Information of the disclosing party which may come to the receiving party’s attention.

6.3.       Each party may disclose the other party’s Confidential Information to its employees, officers, agents, consultants or sub‐contractors (Representatives) who need to know such information for the purposes of carrying out its obligations under the Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 6 and as may be required by law, court order or any governmental or regulatory authority. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause.

6.4.       Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in the Agreement are granted to the other party or are to be implied from the Agreement. In particular, no licence is hereby granted directly or indirectly under any Intellectual Property Right held, made, obtained or licensable by either party now or in the future.

6.5.       Notwithstanding the foregoing, the receiving party shall have no liability to the disclosing party with regard to any Confidential Information which the receiving party can prove:

6.5.1.    was in or has entered the public domain at the time it was disclosed through no fault of the receiving party;

6.5.2.    was known to the receiving party, without restriction, at the time of disclosure;

6.5.3.    is disclosed with the prior written approval of the disclosing party;

6.5.4.    was independently developed by the receiving party without any use of the Confidential Information;

6.5.5.    becomes known to the receiving party, without restriction, from a source other than the disclosing party, without breach of the Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; or

6.5.6.    is disclosed pursuant to an order of a court or other governmental or regulatory body; provided that the receiving party shall, to the extent permitted by law, provide the disclosing party with prompt notice of such court order to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

7.           LIMITED SOFTWARE WARRANTY AND WARRANTY OF CUSTOMER

7.1.       Subject to clause 7.2, Supplier warrants for the Term (Warranty Period), that the Software will perform as specified in the Documents, when used in accordance with the Documents and the Agreement.

7.2.       The Supplier does not warrant:

7.2.1.    that the use of the Software will be uninterrupted or error‐free;

7.2.2.    the performance of the Software outside the scope of the Documents; or

7.2.3.    that the Software has been developed to meet the individual requirements of Customer.

7.3.       Should a warranty breach occur during the Warranty Period  and the Customer notifies Supplier in writing within fourteen (14) days of becoming aware of such breach providing all the information that may be necessary to assist Supplier in resolving the defect or fault, Supplier will, at its sole option and expense either repair or replace the Software or parts therein; and if Supplier cannot reasonable repair or replace the Software or parts therein, then Supplier shall at its option terminate the Agreement immediately by notice in writing to the Customer and refund the Fee paid for the Software or parts therein (less a reasonable sum in respect of the Customer’s use of the Software up to the point of termination).

7.4.       The Supplier shall have no liability whatsoever for any warranty breach that is attributable to any of the matters referred to clauses 9.2.1 to 9.2.4.  

7.5.       To the maximum extent permitted by applicable law, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

7.6.       The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

7.7.       The Customer represents and warrants that:

7.7.1.    the person entering into or otherwise accepting the Agreement on behalf of the Customer is duly authorised and has legal capacity to do so;

7.7.2.    its acceptance of the Agreement and the performance of its obligations under the Agreement have been duly authorised and that the Agreement is binding on the Customer and enforceable in accordance with its terms.

7.8.       The foregoing limited warranty and remedies state the sole and exclusive remedies for the Customer. The Supplier does not and cannot warrant the performance or results you may obtain by using the Services.

8.           LIMITATION OF LIABILITY

8.1.       Subject to clause 8.2, the aggregate liability of Supplier for or in respect of any loss or damage suffered by Customer (whether due to breach of contract, tort (including negligence) or otherwise) under or in connection with the Agreement and the use of the Software, Documents and Support Services shall not exceed the Fees paid by Customer.

8.2.       The exclusions in clause 8 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

8.2.1.    death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;

8.2.2.    fraud or fraudulent misrepresentation; or

8.2.3.    any other liability which may not be excluded by applicable law.

8.3        Subject to clause 8.2, Supplier shall have no liability for any:

8.3.1.    special, indirect or consequential losses or damages of any kind which may be suffered by the Customer (or any person claiming under or through the Customer) in connection with the Agreement;

8.3.2.    for loss of profits;

8.3.3.    anticipated savings;

8.3.4.     business opportunity;

8.3.5.    goodwill; or

8.3.6.    data (including corruption of or loss or damage to data),

whether or not such losses or damages are foreseeable; and whether the same arise in contract, tort (including negligence) or otherwise.

9.           INTELLECTUAL PROPERTY AND INDEMNITY

9.1.       The Customer acknowledges that all Intellectual Property Rights in the Services (and as may be updated from time to time) belong and shall remain with the Supplier (or its licensors) and the Customer shall have no rights, title, ownership or interest in or to any Intellectual Property Rights in the Services other than the right to use it in accordance with the terms of the Agreement.

9.2.       The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the proper use of the Software by Customer in accordance with the Agreement  infringes the Intellectual Property Rights of a third party in the United Kingdom (Claim) and shall be responsible for any damages awarded against the Customer or agreed upon in settlement by Supplier as a result of or in connection with any such Claim in accordance with the terms set out below. For the avoidance of doubt, this clause 9.2 shall not apply where the Claim in question is attributable to:

9.2.1.    such defect or fault results from the Customer, or anyone acting with the authority of the Customer, having amended the Software; or

9.2.2.    use of the Software (or any part thereof) by the Customer other than in accordance with the Agreement or in a context other than the purpose or context for which it was designed; or

9.2.3.    use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined; or

9.2.4.    the Software has not been loaded onto Supplier-specified or suitably configured equipment unauthorised changes to the Software carried out by the Customer, or at the Customer’s request.

9.3.       If a Claim is made against the Customer, the Supplier's obligations under clause 9.2 are conditional on the Customer:

9.3.1.    as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;

9.3.2.    not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);

9.3.3.    permitting Supplier to control the defence and settlement of the Claim and providing Supplier with reasonable information and assistance for the defence or settlement of the Claim; and

9.3.4.    using all commercially reasonable efforts to mitigate any loss, damage or costs related to the Claim.

9.4.       If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

9.4.1.    procure for the Customer the right to continue using the Software (or any part thereof) in accordance with the Agreement;

9.4.2.    modify the Software so that it ceases to be infringing;

9.4.3.    replace the Software with non‐infringing software; or

9.4.4.    if in Supplier’s opinion none of the options above are commercially feasible, terminate the Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software or disabling of access to the Software and all copies thereof.

9.5.       This clause 9 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims.

10.        DATA PROTECTION 

10.1.     For purposes of administration of the Agreement, Supplier will require certain Customer data (Customer Data) to be provided to it (including without limitation Customer name, address and payment and credit details). The Supplier agrees that it shall acquire no rights or interest in the Customer Data. The Customer hereby consents to Supplier’s processing of such Customer data and agrees that such Customer Data may be held by Supplier to administer the Agreement, including for the provision of Support Services, and submitted to credit reference agencies, as may be required, in accordance with this Agreement and the Supplier’s Privacy Policy.

10.2      Both parties will comply with all applicable requirements of the Applicable Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Applicable Data Protection Legislation.

10.3.     The parties acknowledge that for the purposes of the Applicable Data Protection Legislation, the Supplier is the Processor and the Customer is the Controller. Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

10.4.     Without prejudice to the generality of clause 10.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Agreement and shall have sole responsibility for the legality, reliability, accuracy and quality of any the Customer data (including Personal Data).

10.5.     Without prejudice to the generality of clause 10.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Customer of its obligations under the Agreement:

10.5.1. process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the Applicable Data Protection Legislation. Where the Supplier is relying on the Applicable Data Protection Legislation as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Protection Legislation unless such Applicable Data Protection Legislation prohibits the Supplier from so notifying the Customer;

10.5.2. ensure that it has in place appropriate technical and organisational measures, 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;

10.5.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

10.5.4. not transfer any personal data outside of the UK unless the following conditions are fulfilled (and the Customer hereby consents to transfers on this basis):

(a)          the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

(b)          the data subject has enforceable rights and effective legal remedies; and

(c)          the Supplier complies with its obligations under the Applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;

10.5.5. 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 Applicable Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

10.5.6. notify the Customer without undue delay on becoming aware of a Personal Data Breach;

10.5.7. 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 the Applicable Data Protection Legislation to store the personal data;

10.5.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and allow for audits by the Customer or the Customer's designated auditor. Such audits shall be on reasonable written notice (at least four (4) weeks) and in accordance with the Supplier’s security requirements and policies. Audits of compliance with data protection obligations are limited to no more than once per year unless the Customer has genuine reason to believe that the Supplier is in material breach of this clause 10 or can demonstrate that it requires copies of applicable documentation to comply with the Applicable Data Protection Legislation or the requirements of the applicable regulatory authority. In such case the Customer shall act reasonably in relation to any audit request, and in a manner which results in the minimum of inconvenience to the Supplier; and

10.5.9. immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Applicable Data Protection Legislation.

10.5.     The Customer hereby provides its prior, general authorisation for the Supplier to:

10.6.1. appoint processors to process the Personal Data provided that the Supplier:

(a)          shall ensure that the terms on which it appoints such processors comply with the Applicable Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in this clause;

(b)          shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and

(c)          shall inform the Customer of any intended changes concerning the addition or replacement of the sub processors;

10.6.2. transfer Personal Data outside of the UK as required for the performance of this Agreement, provided that the Supplier shall ensure that all such transfers are effected in accordance with the Applicable Data Protection Legislation. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or to enter into an international data transfer agreement adopted by the UK Commissioner from time to time (where the UK GDPR applies to the transfer).

11.        TERMINATION

11.1.     Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if:

11.1.1. the Customer commits a material breach of any term(s) of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven (7) days after being notified in writing to do so;

11.1.2. the Customer 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;

11.1.3. 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 the Customer; 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 Customer;

11.1.4. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

11.1.5. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.2. to 11.1.4 (inclusive); or

11.1.6. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

11.2.     In addition to its rights of termination under clause 11.1, the Supplier shall be entitled to terminate the Agreement if the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment.

11.3.     Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.

11.4.     Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

11.5.     On termination for any reason:

11.5.1. all rights granted to the Customer under the Agreement shall cease;

11.5.2. the Customer shall cease all activities authorised by the Agreement;

11.5.3. the Customer shall immediately pay to the Supplier any sums due to the Supplier under the Agreement up to the date of termination;

11.5.4. the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software and Documents then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so; and

11.5.5. each party shall return to the other all Confidential Information of the other party.

12.        GENERAL

12.1.     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.

12.2.     Assignment.

12.1.1. The Customer shall not without the prior written consent of the Supplier:

(a)          sub‐license, assign or novate the benefit or burden of the Agreement in whole or in part; or

(b)          deal in any other manner with any or all of its rights and obligations under the Agreement.

12.1.2. The Supplier may at any time sub‐license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Agreement, provided it gives written notice to the Customer.

12.2.     Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.3.     Entire Agreement. The Agreement contains the whole agreement between the parties relating to the subject matter hereof, supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter excluding the Customer's purchase order or confirmation of order. Each party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) (Representation) other than as expressly set out in the Agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

12.4.     Amendments. No variation of the Agreement shall be effective unless it is amended in writing and signed by an authorized representative of each party.

12.5.     Invalidity. If any provision or part‐provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part‐ provision shall be deemed deleted. Any modification to or deletion of a provision or part‐ provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

12.6.     Third Party Rights. A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

12.7.     Independent Contractors. Nothing in the 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.

12.8.     Non‐Solicitation. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Agreement to the expiry of six (6) months after termination or expiry of the Agreement, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in connection with the Agreement.

12.9.     Force Majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

12.10.  Notices. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre‐paid first‐class post or other next working day delivery service at its registered office or its principal place of business.

12.11.  Governing Law. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non‐contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or their subject matter or formation (including non‐contractual disputes or claims).

 

 

Schedule 1: Particulars of Data Processing 

 

Data subjects:	Customer’s customers/clients   Customer’s personnel/employees
Types of personal data:	Name Address   Telephone number  Email address Date of Birth   Credit card name and number
Special categories of personal data:	N/A
Purpose of processing:	To provide the Services in accordance with the Agreement.
Nature of processing:	Storage processing of Personal Data as is necessary to provide the Services in accordance with the Agreement.
Duration	For the duration of the Agreement between the Supplier and Customer.
Additional instructions:	As provided by the Customer in writing from time to time.