MICAP Review - Goldfinch EIS Fund
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STANDARD TERMS - LAST UPDATED JULY 2022
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Additional Subscriptions: Additional Subscriptions as purchased by the Customer pursuant to Clause 3.1.
Agreement: these Standard Terms, Schedule 1 and Schedule 2, plus any related Order Form and Appendix 1.
Appendix 1: a section on the Order Form denoting any special terms agreed between the Supplier and the Customer, or any other agreement in writing between the Supplier and the Customer which sets out any special terms, including over email.
Authorised Users: employees, agents (including appointed representatives of, or members of a network operated by, the Customer) and independent suppliers of Customer authorised by Customer to use the Services and the Documentation, as further described in Clause 2.2(d).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client Data: data provided by the investment managers to the Supplier relating to the performance of the Customer’s clients’ investments in tax-advantaged funds.
Client-Reporting Subscriptions: the number of clients the Customer has purchased client reporting for, as set out in the Order Form in each case as amended by the Principal Parties from time to time in writing pursuant to Clause 3.1 and Clause 3.5.
Commencement Date: with respect to each Subscription (including Additional Subscription) purchased by the Customer, the later of the Effective Date or the date the Supplier issued its first invoice to the Customer for that Subscription.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of Control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.5 or Clause 11.6.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in Data Protection Legislation.
Customer: the entity set out in the Order Form that has purchased the Subscriptions.
Customer Data: the data inputted by Customer, Authorised Users, or Supplier on Customer’s or Authorised User’s behalf, for the purpose of using the Services or facilitating Customer’s use of the Services.
Data Protection Legislation: UK Data Protection Legislation and the applicable Data Protection Legislation in each country of operations covered by this Agreement and any other 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).
Documentation: any documents made available to Customer by Supplier via email or online via www.micap.com or such other web address notified by the Supplier to Customer from time to time which sets out a description of the Services.
Effective Date: the date the Order Form is signed or otherwise agreed to by the Customer.
Fees: the fees payable by Customer to Supplier for the Services, as set out in the Order Form or as updated from time to time by Supplier on giving notice in writing to Customer.
Initial Period: a minimum period of 12 months for User Subscriptions, and a minimum period of 24 months for Panel-Support-Service Subscriptions and Client-Reporting Subscriptions.
Initial Subscription Term: the Initial Period of the Subscriptions purchased by the Customer, to include the Initial Period of any Additional Subscriptions purchased by the Customer pursuant to Clause 3.1.
Market Screen: a document provided by the Supplier to the Customer which summarises the results of the Supplier checking all open tax-advantaged funds in the market against the Customer’s criteria for choosing tax-advantaged funds and their investment managers.
Normal Business Hours: 9.00 am to 5:30 pm local UK time, each Business Day.
Order Form: any document titled Order Form signed by both the Supplier and the Customer, or any other agreement between the Supplier and the Customer in writing which sets out the Subscriptions requested by the Customer or, where no such document has been signed, any email or web-based application completed by the Customer to request a User Subscription from the Supplier.
Panel Document: a document provided by the Supplier to the Customer which sets out the Customer’s criteria for choosing tax-advantaged funds and their investment managers, and forms the basis for subsequent market screens performed by the Supplier for the Customer.
Panel-Support-Service Subscriptions: the number of tax wrappers (EIS,VCT,BR) the Customer has purchased panel support services for, as set out in the Order Form in each case as amended by the Principal Parties from time to time in writing pursuant to Clause 3.1.
Parties: Supplier, Customer and any Authorised Users
Principal Parties: Supplier and Customer
Payment Date: the date of payment for the Subscriptions as set out in the Order Form.
Product Data: data relating to tax-advantaged funds and their investment managers which is provided to the Supplier by the investment managers.
Renewal Period: the period described in Clause 14.1.
Services: the Subscriptions as set out in the Order Form and as more particularly described in the Documentation, and provided by the Supplier to the Customer under this Agreement via www.micap.com or any other website notified to the Customer by the Supplier from time to time, in each case as amended by the Principal Parties from time to time in writing, purchased by Customer pursuant to Clause 9.1.
Software: the online software applications provided by Supplier as part of the Services.
Subscriptions: User Subscriptions, Panel-Support-Service Subscriptions and/or Client-Reporting Subscriptions as purchased by the Customer.
Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods, if any.
Supplier: MI Capital Research Ltd, a company incorporated in England and Wales with company number 08634361 and having its registered office at C/O Annette & Co, Suite F16 St George’s Business Park, Castle Road, Sittingbourne, ME10 3TB.
Support Services Policy: Supplier’s policy for providing support in relation to the Services as made available at www.micap.com or such other website address as may be notified to Customer from time to time.
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); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
User Subscriptions: the user subscriptions which in accordance with this Agreement entitle Authorised Users to access www.micap.com and any other website notified to the Customer by the Supplier from time to time as necessary for the Customer to use the Services as set out in the Order Form, in each case as amended by the Principal Parties from time to time in writing pursuant to Clause 3.1.
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.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes and e-mail. E-mails to the Supplier should be sent to firstname.lastname@example.org.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement
2.1 Subject to Customer purchasing the Subscriptions as set out in the Order Form and in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, Supplier grants to Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit Authorised Users to use the Services during the Subscription Term solely for Customer’s internal business operations.
2.2 Customer undertakes that:
(a) the maximum number of Authorised Users authorised to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will purchase a User Subscription for each individual Authorised User. No User Subscription can be shared but may be reassigned / taken over to another Authorised User. Where there has been re-assignment the original Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall have a secure password for his individual use of the Services, that such password shall be changed as per Supplier’s operating systems and not shared with anyone else;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Supplier within 5 Business Days of Supplier’s written request at any time or time;
(e) it shall permit Supplier or its auditor to audit the Services in order to establish the name and password of each Authorised User to audit compliance with this Agreement. Each such audit may be conducted no more than once per year, at Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner so as not to substantially interfere with the Customer’s normal conduct of business;
(f) if any of the audits referred to in Clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Supplier’s other rights and without limitation, Customer shall promptly disable such passwords and Supplier shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in Clause 2.2(e) reveal that Customer has underpaid Fees to Supplier, then without prejudice to Supplier’s other rights, Customer shall pay to Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form as updated from time to time, within 10 Business Days of the date of the relevant audit.
2.3 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
2.4 Supplier reserves the right, without liability or prejudice to the other rights of Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
2.5 Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Principal Parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties (specifically excluding the provision of financial advisory services to retail clients, the provision of paraplanning services to financial advisers, or the provision of fund management services); or
(d) subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, charge or give security over or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into Supplier’s or any third parties’ network and information systems.
2.6 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Supplier.
2.7 The rights provided under this Clause 2 are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of Customer which is not listed as a Principal Party on the Order Form.
3.1 Subject to Clause 3.2 and Clause 3.3, Customer may, from time to time during the Subscription Term, purchase Additional Subscriptions in excess of the number set out in the Order Form and Supplier shall provide any such Additional Subscriptions and grant access to the Services and the Documentation to any such additional Authorised Users, as appropriate, in accordance with the provisions of this Agreement.
3.2 If Customer wishes to purchase Additional Subscriptions, Customer shall notify Supplier in writing.
3.3 If written notice is received from the Customer to purchase Additional Subscriptions, Supplier shall follow its new user protocol in force from time to time, and evaluate such request for Additional Subscriptions within 5 Business Days of Customer providing all the necessary information and respond to Customer with approval or rejection of the request. Where Supplier approves the request, Supplier shall activate the additional User Subscriptions or commence the provision of the Additional Subscriptions within 5 Business Days of its approval of Customer’s request.
3.4 If Supplier approves Customer’s request to purchase Additional Subscriptions, Customer shall, within 30 days of the date of Supplier’s invoice, pay to Supplier the relevant fees for such Additional Subscriptions as set out in the Order Form. All such Additional Subscriptions purchased are subject to an Initial Period as set out in the Order Form and in Appendix 1 commencing on the date of the Supplier’s invoice for the Additional Subscriptions. The Supplier’s first invoice for such Additional Subscriptions shall be pro-rated for the period from the date of activation of such Additional Subscriptions by Supplier to the next Payment Date for each Subscription.
4.1 Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to Customer on and subject to the terms of this Agreement.
4.2 Supplier shall use commercially reasonable endeavours as per the Service Levels set out in Schedule 2 to make the Services available during Normal Business Hours, except for unscheduled maintenance, provided that Supplier has used reasonable endeavours to give Customer at least 24 hours’ notice in advance.
4.3 The Services include provision of Supplier’s standard customer support services during Normal Business Hours. Ongoing telephone and email support from Supplier shall be subject to fair usage. Supplier shall use reasonable endeavours to respond to any queries within 3 Business Days of receiving them, and to be available during normal business hours.
4.4 Customer may purchase enhanced support services separately at Supplier’s then current rates.
4.5 For the User Subscriptions the Parties acknowledge that:
(a) Supplier’s User Subscriptions are reliant on Product Data which is provided to Supplier by the relevant investment managers. Supplier shall maintain the Product Data with reasonable care and skill in order to provide User Subscriptions to Customer or any Authorised User.
(b) Supplier relies on the investment managers for the accuracy of the Product Data. As Supplier relies on the investment managers to maintain the Product Data accurately, Supplier does not warrant that the Product Data shall be accurate and shall accept no liability for the inaccuracy of any Product Data. Some investment managers may not provide Supplier with Product Data in a timely manner, and so Supplier shall accept no liability for any such Product Data or for any direct or indirect consequences in relation to any such Product Data which is absent, out of date or otherwise defective.
(c) All Product Data made available to the Customer and any Authorised User by Supplier (including MICAP Reviews) are for Customer’s internal use only and are not for redisplay to the public or to any external parties, except as required by law or upon request by any regulatory body with relevant jurisdiction.
(d) Where Customer or any Authorised User is a professional financial adviser or wealth management firm, it shall use its skill and judgement to analyse and compare products and decide which ones are suitable and appropriate for its own customers. Supplier does not provide financial advice and the Customer or any Authorised User acknowledges that the decision on whether or not to recommend a product to its client rests solely with Customer or any Authorised User.
(e) Customer or any Authorised User acknowledges that it is the responsibility of the relevant investment managers (and not the responsibility of Supplier) to maintain their digital application forms, keep them up-to-date and process completed submissions in the same manner as signed application forms they receive from any other channels.
4.6 For the Panel-Support-Service Subscriptions the Parties acknowledge that:
(a) Supplier’s Panel Support Services are reliant on Product Data which is provided to Supplier by the relevant investment managers. Supplier shall maintain the Product Data with reasonable care and skill in order to provide Panel Support Services to Customer or any Authorised User.
(b) Supplier relies on the investment managers for the accuracy of the Product Data. Customer or any Authorised User acknowledges that as Supplier relies on the investment managers to maintain the Product Data accurately, Supplier does not warrant that the Product Data shall be accurate and shall accept no liability for the inaccuracy of any Product Data. Customer or any Authorised User acknowledges that some investment managers may not provide Supplier with Product Data in a timely manner, and so Supplier shall accept no liability for any such Product Data and for any direct or indirect consequences in relation to any such Product Data which is absent, out of date or otherwise defective.
(c) Any Panel Document and Market Screen issued by Supplier will be created by Supplier with reasonable care and skill and will be delivered by email to Customer unless Supplier agrees with Customer otherwise.
(d) Any Panel Document will be valid for a maximum of 12 months from the date it is delivered to Customer and any Market Screen will be valid for a maximum of 3 months from the date it is delivered to Customer.
(e) Any documents provided to Customer by Supplier (including any Market Screen or Panel Document) or any Product Data are for Customer’s internal use only and are not for redisplay to the public or to any external parties, except as required by law or upon request by any regulatory body with relevant jurisdiction.
(f) Customer or any Authorised User shall use its skill and judgement as a professional financial adviser or wealth management firm to analyse and compare products and decide which ones are suitable and appropriate for its own customers. Supplier does not provide financial advice and that the decision on whether or not to include a product in Customer or any Authorised User's panel rests solely with Customer or any Authorised User .
4.7 For the Client-Reporting Subscriptions the Parties acknowledge that:
(a) Supplier’s Client Reporting Services are reliant on Client Data, which is provided to Supplier by the relevant Customer’s investment managers. Supplier shall collect and maintain the Client Data with reasonable care and skill in order to provide its Client Reporting Services to Customer.
(b) Supplier relies on the investment managers for the accuracy of the Client Data. To that effect, Supplier does not warrant that the Client Data shall be accurate and shall accept no liability for the inaccuracy of any Client Data.
(c) Customer acknowledges that some investment managers may not provide Supplier with Client Data in a timely manner, and Supplier shall accept no liability for any such Client Data and for any direct or indirect consequences in relation to any such Client Data which is absent, out of date or otherwise defective. In any such case, if Supplier is unable to perform services by the date agreed between the Principal Parties, Supplier shall use reasonable endeavours to arrange a new date and time for delivery with the investment manager.
(d) Customer acknowledges that investment managers may provide Supplier with pdf format valuation reports. Supplier will manually transfer these reports into an appropriate compatible data format. Supplier will use reasonable endeavours to transcribe the data into appropriate format. However, human error may happen and the Parties agree that any such error shall not constitute a breach under this Agreement. Upon noticing any such error, Customer shall immediately inform Supplier of said error and Supplier shall immediately correct and amend such error without further liability to Customer.
€ the Customer may terminate a Client-Reporting Subscription relating to a specific client for which the Services are no longer required because the relevant client has died or is no longer a client of the Customer, in which case the Customer may terminate the Client-Reporting Subscription for that client on giving written notice at least 60 days before the next Payment Date.
(f) Customer acknowledges that in order to provide the Client Reporting Services the Supplier will have to make available to investment managers certain Customer Data to help ensure that the correct clients are identified. In situations where the investment managers records are incomplete, the Customer consents for the investment managers to update their records with this Customer Data to facilitate the provision of the Client Reporting Services.
5.1 Customer shall retain ownership of its data at all times and shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 Supplier shall archive Customer Data. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy against Supplier shall be for Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Supplier. Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under Clause 5.9).
5.3 Supplier shall, in providing the Services, comply with its Privacy and Security Policy available at www.micap.com.
5.4 The 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, the Parties’ obligations or rights under the Data Protection Legislation.
5.5 The Parties acknowledge that:
(a) if Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, Customer is the controller and Supplier is the processor for the purposes of the Data Protection Legislation.
(b) 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.
(c) personal data may be transferred or stored outside the EEA subject to clause 5.7(b) below or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this Agreement.
5.6 Without prejudice to the generality of Clause 5.4, Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Supplier for the duration and purposes of this Agreement so that Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer’s behalf.
5.7 Without prejudice to the generality of Clause 5.4, Supplier shall, in relation to any personal data processed in connection with the performance by Supplier of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions of Customer unless Supplier is required by the laws applicable to 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 Supplier is relying on Applicable Laws as the basis for processing personal data, Supplier shall promptly notify Customer of this before performing the processing required by Applicable Laws unless those Applicable Laws prohibit Supplier from notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) Customer or Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) 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
(iv) Supplier complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the personal data.
(c) assist Customer, at Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of Customer, delete or return personal data and copies of such data to Customer on termination of this Agreement 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);
(f) maintain complete and accurate records and information to demonstrate its compliance with this Clause 5 and immediately inform Customer if, in the opinion of Supplier, an instruction infringes the Data Protection Legislation; and
(g) allow for and contribute to audits, including inspections carried out by and on behalf of Customer, upon reasonable notice to Supplier and not more than once in any 12-month period, unless required more often by a supervisory authority to determine Supplier’s compliance with Data Protection Legislations.
5.8 Each of the Parties 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). Customer shall satisfy itself that Supplier’s technical and organisational measures meet its requirements in terms of protecting and securing its data.
5.9 Customer consents to Supplier appointing a third-party processor of personal data under this Agreement as needed by Supplier for the provision of the Services. Where such appointment is made, Supplier will enter into a written agreement with the third-party processor incorporating terms which are substantially similar to those set out in this Clause 5 and which reflect and will continue to reflect the requirements of the Data Protection Legislation. As between Customer and Supplier, Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 5.
5.10 Either of the Principal Parties may, by prior mutual agreement, 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 this Agreement).
7.1 Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services by Customer contrary to Supplier’s instructions, or modification or alteration of the Services by any party other than Supplier or Supplier’s duly authorised Suppliers or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1.
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This Agreement shall not prevent Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.5 Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8.1 Customer shall:
(a) provide Supplier with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its obligations under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the Parties, Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Supplier, its Suppliers and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9.1 Customer shall pay the Fees to Supplier for the Services in accordance with this Clause 9 and the Order Form.
9.2 Customer shall on the Effective Date provide to Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to Supplier and any other relevant valid, up-to-date and complete contact and billing details. If Customer provides:
(a) its credit card details to Supplier, Customer hereby authorises Supplier to bill such credit card and agrees to provide updated credit card details if the original card expires during the Subscription Term:
(i) on the Commencement Date for the pro-rated Fees payable in respect of the period from the Commencement Date until the first Payment Date; and
(ii) subject to Clause 14.1, on each subsequent Payment Date for the pro-rated Fees payable in respect of the period from the last Payment Date until the next Payment Date;
(b) its approved purchase order information to Supplier, Supplier shall invoice Customer:
(i) on the Commencement Date for the pro-rated Fees payable in respect of the period from the Commencement Date until the first Payment Date for Subscriptions with a calendar quarter Payment Date, or on the Commencement Date for the pro-rated Fees payable in respect of the period from the Commencement Date until the second Payment Date for Subscriptions with a monthly Payment Date ; and
(ii) subject to Clause 14.1, at least 30 days prior to each subsequent Payment Date, and Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If Supplier has not received payment within 30 days after the due date, without prejudice to any other rights and remedies of Supplier:
(a) Supplier may, without liability to Customer, disable Customer’s and its Authorised Users’ passwords, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in the currency set out in the Order Form;
(b) are, subject to Clause 13.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Supplier’s invoice(s) at the appropriate rate.
10.1 Customer acknowledges and agrees that Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.1 Each of the Parties may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to Clause 11.4, each of the Parties 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 this Agreement and use of the Services as contemplated by this Agreement.
11.3 Each of the Parties shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 Each of the Parties 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.
11.5 Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Supplier’s Confidential Information.
11.6 Supplier acknowledges that Customer Data is the Confidential Information of Customer.
11.7 None of the Parties shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The above provisions of this Clause 11 shall survive termination of this Agreement, however arising.
12.1 Customer and any Authorised User shall defend, indemnify and hold harmless 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 Customer or Authorised User’s use of the Services and/or Documentation, provided that:
(a) Customer and any Authorised User is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer or Authorised User in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer or Authorised User is given sole authority to defend or settle the claim.
12.2 Subject to Clause 13.3, Supplier shall defend Customer, its officers, directors and employees against any claim that Customer’s use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:
(a) Supplier is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Supplier in the defence and settlement of such claim, at Supplier’s expense; and
(c) Supplier is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Supplier may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.
12.4 In no event shall Supplier, its employees, agents and sub-Suppliers be liable to Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Supplier; or
(b) Customer’s use of the Services or Documentation in a manner contrary to the instructions given to Customer by Supplier; or
(c) Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Supplier or any appropriate authority.
12.5 The foregoing and Clause 13.3(b) state Customer’s sole and exclusive rights and remedies, and Supplier’s (including Supplier’s employees’, agents’ and sub-Suppliers’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13.1 Except as expressly and specifically provided in this Agreement:
(a) Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by it, and for conclusions drawn from such use. Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Supplier by Customer in connection with the Services, or any actions taken by Supplier at Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to Customer on an “as is” basis.
13.2 Nothing in this Agreement excludes the liability of Supplier:
(a) for death or personal injury caused by Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to Clause 13.1 and Clause 13.2:
(a) Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Supplier’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 125% of the total Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
14.1 Each Subscription (including any Additional Subscriptions purchased by the Customer) shall, unless otherwise terminated as provided in this Clause 14, commence on the Commencement Date and shall continue for the Initial Period and, thereafter, shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either of the Principal Parties notifies the other party in writing, of termination, at least 90 days before the end of the Initial Period or any Renewal Period, in which case the Subscription shall terminate upon the expiry of the applicable Initial Period or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement;
14.2 This Agreement shall continue until either of the Principal Parties has terminated all Subscriptions in accordance with this Agreement.
14.3 Without affecting any other right or remedy available to it, either of the Principal Parties may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(e) 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;
(f) 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;
(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(h) Supplier has within 15 days of the Customer giving written notice changed its Standard Terms in accordance with Clause 17;
(i) there is a change of Control of Customer.
14.4 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each Party shall make no further use of the Documentation and any other items (and all copies of them) belonging to the other party;
(c) Supplier may destroy or otherwise dispose of any Customer Data in its possession in accordance with Clause 5.7(e), unless Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data in the original format in which it was provided by the Customer to the Supplier. Supplier shall use reasonable commercial endeavours to deliver the back-up to Customer in the original format in which it was provided by the Customer to the Supplier within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Supplier in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the Principal Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), terrorism, 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-Suppliers, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the Standard Terms, the Order Form, Appendix 1 and the schedules, the provisions of Appendix 1 shall prevail followed by the Standard Terms then followed by any other schedules.
17.1 The Standard Terms may be reasonably varied from time to time by Supplier by providing notice in writing to Customer. Any variation of the Standard Terms by Supplier shall only be permitted if the variation is for all Customers of the Supplier in exactly the same manner.
17.2 No variation of Appendix 1 or any other agreement in writing between the Supplier and the Customer which sets out any special terms, including over email, shall be effective unless it is in writing and signed by the Principal Parties (or their authorised representatives).
No failure or delay by a Principal Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of this Agreement 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 this Agreement.
20.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 20.1 the Principal 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.
21.1 This Agreement (and any corresponding Order Form) 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.
21.2 The Parties acknowledge that in entering into this Agreement they does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
21.3 Each of the Parties agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22.1 Customer shall not, without the prior written consent of Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either party to act as agent for the other, and no 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).
This Agreement does not confer any rights on any person or party (other than the Principal Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Principal Party at its address set out in this Agreement, or such other address as may have been notified by that Principal Party for such purposes,.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The Customer recognises that its breach or threatened breach of this Agreement may cause the other irreparable harm, and that the Supplier may therefore be entitled at its own discretion and without proof of special damages, to injunctive or other equitable relief.