The Customer’s attention is particularly drawn to the provisions of clause 16 (Limitation of Liability).
- The following definitions and rules of interpretation apply in these Conditions:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including access credentials for the User Interface;
"Acceptable Use Policy" means the Provider’s acceptable use policy as amended from time to time and which can be found at [HYPERLINK];
“Authorised Users” those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Hosted Services, as further described in Clause 4.3(f)
"Business Day" means any weekday other than a bank or public holiday in England and Wales;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST;
"Charges" means the following amounts:
- the amounts specified in the Key Terms; and
(b) such amounts as may be agreed in writing by the parties from time to time;
"Check" means an ‘Anti-Money Laundering’ and/or ‘Know-Your-Client’ identity verification check carried out on a Customer Client via the Platform;
"Conditions" these terms and conditions as amended from time to time in accordance with clause [X];
"Contract" the contract between the Provider and the Customer for the supply of the Hosted Services in accordance with the Key Terms and these Conditions;
"Commencement Date" has the meaning given in the Key Terms;
"Customer" has the meaning given in the Key Terms;
"Customer Client" means a person who is a client of the Customer;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Contract (including, but not limited to, the Personal Data of any Customer Client), but excluding Provider Personal Data;
"Data Protection Laws" means the EU GDPR and the UK GDPR, and all other applicable laws relating to the processing of Personal Data;
"EU GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars;
"Hosted Services" means the Web Application, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with these Conditions;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
- any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
- any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
- a failure of the Customer to perform or observe any of its obligations in the Contract; and/or
- an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in the Key Terms;
"Pilot" any initial pilot period as described in the Key Terms (if any);
"Initial Term" the period specified in the Key Terms and commencing on the Commencement Date;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Key Terms" means the commercial term sheet agreed between the Customer and the Provider;
"Personal Data" means personal data under any of the Data Protection Laws;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means Validient Ltd, a company incorporated in England and Wales (registration number 13452265) having its registered office at 46/47, High Street, Newport, NP20 1GA;
"Provider Personal Data" means any Personal Data which the Provider processes in connection with the Contract, in the capacity of a controller;
"Renewal Term” has the meaning given in Clause 3.1;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under the Contract;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services (but which shall not include the provision of training services);
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of Contract, being the Initial Term, any Renewal Term and ending in accordance with Clause 3.1;
"UK GDPR" means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services; and
"Web Application" means the web application known as 'Validient’ that is made available by the Provider through Supported Web Browsers for the purpose of collating Customer Client identity documents and carrying out Checks.
This document was adapted from a template obtained from Docular.
- The Contract shall come into force upon the Commencement Date and shall continue for the Initial Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Term), unless:
- the Customer notifies the Provider of termination, in writing, at any time during any Pilot (in which case the Contract shall terminate immediately);
- either party provides the other party not less than 30 days’ notice in writing of termination (ending no earlier than the end of the Initial Term), in which case the Contract shall terminate upon the expiry of the 30 day notice period (or at the end of the Initial Term, if later); or
(c) otherwise terminated in accordance with clause 18 (Termination) or any other provision of these Conditions.
- Hosted Services
- The Provider shall promptly provide, or shall ensure that the Platform will provide, to the Customer upon the Commencement Date the Access Credentials necessary to enable the Customer and its Authorised Users to access and use the Hosted Services.
- The Provider hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Hosted Services by means of the User Interface for the internal business purposes of the Customer in accordance with the Documentation during the Term.
- The licence granted by the Provider to the Customer under Clause 2 is subject to the following limitations (and the Customer undertakes that):
- the User Interface may only be used through a Supported Web Browser;
- the User Interface may only be used by Authorised Users;
- the maximum number of Authorised Users that the Customer authorises to access and use the Hosted Services shall not exceed the number of Authorised Users specified in the Key Terms (unless agreed in writing by the Provider, subject to any additional Charges as set out in the Key Terms);
- the Customer will not allow or suffer any Access Credentials to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User (on notice in writing to the Provider), in which case the prior Authorised User shall no longer have any right to access or use the Hosted Services;
- each Authorised User shall keep a secure password for their use of the Hosted Services and that each Authorised User shall keep their password confidential;
- the Customer shall maintain a written, up to date list of current Authorised Users and provide such list to the Provider within 5 Business Days of the Provider's written request at any time or times;
- the Customer shall permit the Provider or the Provider's designated auditor to audit the Hosted Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this Contract. Each such audit may be conducted no more than once per quarter, at the Provider's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
- if any of the audits referred to in Clause 3(g) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Provider's other rights, the Customer shall promptly disable such person’s Access Credentials and the Provider shall not issue any new Access Credentials to any such individual; and
- if any of the audits referred to in Clause 3(g) reveal that the Customer has underpaid Charges to the Provider, then without prejudice to the Provider's other rights, the Customer shall pay to the Provider an amount equal to such underpayment as calculated in accordance with the prices set out in the Key Terms within  Business Days of the date of the relevant audit.
- Except to the extent expressly permitted in the Contract or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 2 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not permit any person who is not an Authorised User or any application to access or use the Hosted Services;
- the Customer must not use the Hosted Services to provide services to third parties;
- the Customer must not republish or redistribute any content or material from the Hosted Services;
- the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
- the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
- The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
- The Provider shall use commercially reasonable endeavours to maintain the availability of the Hosted Services to the Customer 24 hours a day, seven days a week, except for:
- scheduled maintenance carried out in accordance with Clause 5; and;
- unscheduled maintenance performed outside Business Hours, provided that the Provider has used reasonable endeavours to give the Customer at least 6 Business Hours' notice in advance;
- For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Contract:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer's computer systems or networks; or
(d) any breach by the Customer of the Contract.
- The Customer must comply with the Acceptable Use Policy, and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with the Acceptable Use Policy.
- The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
- The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful;
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
- in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services
- For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
- The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Contract is overdue, and the Provider has given to the Customer at least 14 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
- Scheduled maintenance
- The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 5.
- The Provider shall (where practicable) give to the Customer at least 5 Business Days' prior notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
- The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed 10 hours.
- Support Services
- The Provider shall, in connection with the provision of the Hosted Services, provide the Support Services to the Customer during the Term during Business Hours at no additional cost to the Customer.
- The Provider shall make available to the Customer a helpdesk in the form of a support email address.
- The Provider shall provide the Support Services with reasonable skill and care.
- The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
- The Provider shall use commercially reasonably endeavours to respond promptly to all requests for Support Services made by the Customer through the helpdesk.
- The Provider may immediately and without notice suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Contract is overdue.
- The Provider shall provide a contact number for business-critical support during Business Hours. Business-critical issues would be an issue with the Hosted Services that is restricting the Customer from carrying out their day-to-day responsibilities.
- Customer Data
- The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Contract. The Customer also grants to the Provider the right to sub-license these rights to any of its sub-contractors, subject to any express restrictions elsewhere in the Contract.
- The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
- The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 14 days.
- Within the period of 10 Business Days following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
- The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
- Customer’s Obligations
- The Customer shall:
- provide the Provider, its employees, agents, consultants and subcontractors with:
- all necessary co-operation in relation to the Contract; and
- all necessary access to such information as may be reasonably required by the Provider,
in order to provide the Services, including but not limited to Customer Data;
- without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
- carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Contract and shall be responsible for any Authorised User's breach of the Contract;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Customer to have for the Provider, its contractors and agents to perform their obligations under the Contract; and
- be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Provider'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.
- The Customer warrants to the Provider that it has the legal right and authority to enter into the Contract and to perform its obligations under the Contract.
- Intellectual Property Rights
The Customer acknowledges and agrees that the Provider and/or its licensors own all Intellectual Property Rights in the Hosted Services and the Documentation. Except as expressly stated in these Conditions, nothing in the Contract shall operate to grant, assign or transfer any Intellectual Property Rights from the Provider to the Customer.
- The Customer shall pay the Charges to the Provider in accordance with the Contract.
- All amounts stated in or in relation to the Contract are, unless agreed otherwise:
- payable in pounds sterling;
- non-cancellable and non-refundable; and
- stated exclusive of any applicable value added taxes, which shall be added to the Provider’s invoice(s) at the appropriate rate.
- The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice in advance of any Renewal Date and the Key Terms shall be deemed to have been amended accordingly.
- The Provider shall issue invoices for the Charges to the Customer in accordance with the Key Terms.
- The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 11.
- The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer using such payment details by the Provider to the Customer.
- If the Customer does not pay any amount properly due to the Provider under the Contract, the Provider may (at its discretion):
- charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
- claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
- Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 2.
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 12; or
- to the extent required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
- This Clause 12 imposes no obligations upon any party (a discloser) with respect to the other party’s confidential information to the extent that it is:
- is known to the discloser before disclosure under this Contract and is not subject to any other obligation of confidentiality;
- is or becomes publicly known through no act or default of the discloser; or
- is obtained by the discloser from a third party in circumstances where the discloser has no reason to believe that there has been a breach of an obligation of confidentiality.
- Data protection
- Each party shall comply with the Data Protection Laws.
- The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Contract and that there is a lawful basis for the processing of such Personal Data by the Provider in accordance with the terms of the Contract.
- The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Contract:
- The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 1.
- The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in the Contract or any other document agreed by the parties in writing.
- The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
- the Provider may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
- The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
- Notwithstanding any other provision of the Contract, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
- The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
- Without prejudice to the generality of Clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data and Provider Personal Data to the Provider and lawful collection of the same by the Provider for the duration and purposes of the Contract.
- ensure that the terms on which it appoints such processors comply with Data Protection Laws, and are consistent with the obligations imposed on Provider in this Clause 1;
- remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Provider; and
- inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Provider's reasonable satisfaction, that the objection is due to an actual or likely breach of Data Protection Laws, the Customer shall indemnify the Provider for any losses, damages, costs (including legal fees) and expenses suffered by the Provider in accommodating the objection
- The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
- The Provider shall assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Provider), at the Customer’s cost and expense, in ensuring compliance with [the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws].[ The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 15.]
- The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
- The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 1 and the Data Protection Laws. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 17.
- The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent thatapplicable law requires storage of the relevant Personal Data.
- The Provider shall allow for and contribute to reasonable audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 1. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 19.
- If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.
- Provider’s Obligations
- The Provider undertakes that the Hosted Services will be performed substantially in accordance with the Contract and with reasonable skill and care.
- The undertaking at Clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Hosted Services contrary to the Provider's instructions, or modification or alteration of the Services by any party other than the Provider or the Provider’s duly authorised contractors or agents. If the Hosted Services do not conform with the foregoing undertaking, the Provider will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Clause 14.1.
- The Provider warrants to the Customer that:
- the Provider has the legal right and authority to enter into the Contract and to perform its obligations under the Contract; and
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under the Contract.
- Subject to Clause 1, the Provider warrants to the Customer that:
- the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
- the Hosted Services will be free from Hosted Services Defects; and
- the Platform will incorporate security features reflecting the requirements of good industry practice.
- The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with the Contract, will not breach any laws, statutes or regulations applicable under English law.
- The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with the Contract, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
- If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with the Contract infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
- modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
- procure for the Customer the right to use the Hosted Services in accordance with the Contract.
- Acknowledgements and warranty limitations
- The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Contract, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
- The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Contract, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
- The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
- The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under the Contract or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in the Contract, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
- The Customer acknowledges that the Provider is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Hosted Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- The Customer acknowledges that the Hosted Services, Documentation and/or the information obtained by the Customer through the Hosted Services may not meet the Customer’s requirements; and subject to the other provisions of the Contract, the Provider gives no warranty or representation that the Hosted Services will meet the Customer’s requirements.
- The Customer acknowledges that the Provider shall not be prevented from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
- Limitations and exclusions of liability
- Nothing in the Contract will:
- limit or exclude any liability for death or personal injury resulting from negligence;
- limit or exclude any liability for fraud or fraudulent misrepresentation;
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law.
- The limitations and exclusions of liability set out in this Clause 16 and elsewhere in the Contract:
- are subject to Clause 1; and
- govern all liabilities arising under the Contract or relating to the subject matter of the Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Contract.
- The Provider shall not be liable to the Customer in respect of:
- losses arising out of a Force Majeure Event;
- loss of profits or anticipated savings;
- loss of revenue or income;
- loss of use or production;
- loss of business, contracts, or opportunities;
- loss or corruption of any data, database or software; providing that this Clause 3(f) shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4; or
- any special, indirect or consequential loss, costs, charges, expenses or damage.
- Except as expressly and specifically provided in the Contract:
- the Customer assumes sole responsibility for results obtained from the use of the Hosted Services and the Documentation by the Customer, and for conclusions drawn from such use. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Provider by the Customer in connection with the Hosted Services, or any actions taken by the Provider at the Customer's direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract; and
- the Hosted Services and the Documentation are provided to the Customer on an "as is" basis.
16.5 The total aggregate liability of the Provider in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited the total Charges paid during the 12 months immediately preceding the date on which the claim arose.
- Force Majeure Event
- If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
- A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
- promptly notify the other within 1 Business Day; and
- inform the other of the period for which it is estimated that such failure or delay will continue.
- A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
- Subject to applicable law, either party may terminate the Contract immediately by giving written notice of termination to the other party if:
- the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or
- the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
- the other party commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.
- Effects of termination
- Upon the termination of the Contract:
- all of the provisions of the Contract shall cease to have effect, save that the following provisions of these Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 12, 9, 11.2, 11.4, 12, 16, 22and 23;
- all licences granted under the Contract by the Provider shall immediately terminate [and the Customer shall immediately cease all use of the Hosted Services and/or the Documentation
- Except to the extent expressly provided otherwise in the Contract, the termination of the Contract shall not affect the accrued rights of either party.
- Within 30 days following the termination of the Contract for any reason:
- the Customer must pay to the Provider any Charges in respect of Hosted Services provided to the Customer before the termination of the Contract (and in respect of any Hosted Services used by the Customer after termination of the Contract in breach of clause 1(b); and
- the Customer can export their data into a CSV file through the Hosted Services. After 30 days, the data will be destroyed;
without prejudice to the parties' other legal rights.
- Any notice from one party to the other party under the Contract must be given by one of the following methods (using the relevant contact details set out in Clause 2 and the Key Terms)):
- delivered via email to the provided email address; or
- delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
- sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
- The Provider's contact details for notices under this Clause 20 are as follows:
Contact name: Ieuan Leigh
Email address: firstname.lastname@example.org (CC email@example.com)
Address: Floor 1, 46/47, High Street, Newport, NP20 1GA
- The Customer’s contact details for notices under this Clause 20 shall be as set out in the Key Terms.
- The addressee and contact details set out in Clause 2 and the Key Terms may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
- Assignment and other dealings
- The Provider may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract (including, without limitation, subcontracting the provision of that part of the Hosted Services which relates to carrying out Checks).
- The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Provider.
- No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
- If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
- The Contract is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation, or settlement under or relating to the Contract are not subject to the consent of any third party.
- Subject to Clause 1, the Contract shall constitute the entire agreement between the parties in relation to the subject matter of the Contract , and shall supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
- The Contract shall be governed by and construed in accordance with the laws of England and Wales.
- The courts of England and Wales shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.
- If there is an inconsistency between any of the provisions in these Conditions and the Key Terms, the provisions in the Key Terms shall prevail. If there is an inconsistency between any of the provisions in these Conditions and any of the other Documentation (other than the Key Terms), the provisions in these Conditions shall prevail.
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
- In these Conditions, a reference to a statute or statutory provision includes a reference to:
- that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- any subordinate legislation made under that statute or statutory provision.
- The Clause headings do not affect the interpretation of these Conditions.
- References in these Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
- In these Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to writing or written excludes fax but not email.