Obvlo - WHITE LABEL APPLICATION TERMS AND CONDITIONS
Obvlo Limited (“Supplier”), has developed and supplies certain mobile software applications and provides certain services to customers to make those applications available to their own end customers. The Customer (defined below) wishes to use the Supplier’s services in its business operations. The Supplier has agreed to provide, and the Customer has agreed to take and pay for, the Supplier’s services subject to the terms and conditions of the terms and conditions which follow.
1 INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
1.1 Definitions:
“Agreement” means the agreement for the supply of the services consisting of the Service Order and these terms and conditions.
“Application” means the application developed by the Supplier to be supplied to the Customer as described at www.obvlo.com, including both its source code and object code.
“Billing Period” means the monthly period commencing on the date on which the Application is first made available to the Customer and each subsequent monthly period during the Term (or, in the case of the last period, a shorter period that ends on the same date as the end of the Term).
“Business Day” means a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
“Customer” means the party specified in the Service Order to be supplied with the Services.
“Confidential Information” has the meaning given in clause 11 (Confidentiality).
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
“Effective Date” means the last date of signature of the Service Order.
“End User” means any customer of the Customer who has made a transient booking.
“Fees” means the fees due for the Services as calculated and specified in the Service Order.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks.
“Mark Guidelines” means any mark or branding guidelines if applicable supplied by the Customer in writing to the Supplier from time to time.
“Marks” means
(a) any trade marks, trade names, service marks, trade dress, logos, URLs and domain names;
(b) any identifying slogans and symbols;
(c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b); and
(d) the “look and feel”, of a party to this Agreement, whether or not registered.
“Normal Business Hours” means 8.00 am to 6.00 pm local UK time, each Business Day.“Security Event” means any Vulnerability or Virus introduced into the Application by (or facilitated through) the Customer or any End User. “Service Order” means the order signed by the parties from which these terms and conditions are linked, or to which they are attached. “Services” means the services provided by the Supplier to the Customer under this Agreement, including:
(a) the supply of the Application to the End User with the Customer Marks and other branding material applied to it in accordance with the Mark Guidelines if applicable;
(b) the hosting of the Application; and
(c) such other services as the Supplier may decide, at its discretion, to integrate into the Application from time to time.
“Support” means the support to be provided to the Customer under Clause 3.2.
“Term” means the term of this Agreement commencing on the Effective Date and terminating in accordance with Clause 13.1.
“Virus” means 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” means a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
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).
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 If there is an inconsistency between any of the provisions of these terms and conditions and the Service Order, the provisions of the Service Order shall prevail.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 LICENCE AND RESTRICTIONS
2.1 Subject to the Customer not being in breach of its payment obligations under Clause 8, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to sublicense, during the Term:
2.1.1 to provide access to, and permit the End Users to, use the Application;
2.1.2 to reproduce the Supplier’s Marks solely to the extent necessary to promote the Application to End Users.
2.2 In relation to the End Users, the Customer undertakes that:
2.2.1 it shall maintain a complete and accurate record of the number of End Users to which the Application is made available for the purpose of calculating the Fees;
2.2.2 it shall permit the Supplier or the Supplier’s designated auditor to audit the records maintained under clause 2.2.1 and to audit compliance with this Agreement. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
2.2.3 if any of the audits referred to in Clause 2.2.2 reveal any discrepancy, then without prejudice to the Supplier’s other rights, the Customer shall promptly investigate and provide a reasonably satisfactory resolution to the Supplier; and
2.2.4 if any of the audits referred to in Clause 2.2.2 reveal that the Customer has underpaid any fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment, as calculated in accordance with the fee rates specified in the Service Order within ten Business Days of the date of the relevant audit.
2.3 If the Customer becomes aware that an End User’s use of an may introduce a Vulnerability or otherwise give rise to a Security Event, the Customer shall:
2.3.1 notify the Supplier without delay;
2.3.2 take such steps as may be reasonably requested by the Supplier to limit the impact of the Security Event; and
2.3.3 provide such information to the Supplier as may be requested in order to resolve a Security Event or otherwise comply with its legal obligations.
2.4 Notwithstanding any other provision in this Agreement, if there is a Security Event, the Supplier may, without liability or prejudice to its other rights and without prior notice to the Customer or any End User, disable the Application until the relevant Security Event has been resolved. The Supplier shall give the Customer written notice as soon as is reasonably practicable of the nature of the relevant Security Event.
2.5 The Customer shall not:
2.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application (as applicable) in any form or media or by any means except as expressly permitted under this Agreement; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application;
2.5.2 use the Services and/or the Application to provide services to third parties other than End Users;
2.5.3 subject to Clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Application available to any third party except the End Users, provided that the provision of Services to End Users is permitted to the extent necessary to enable them to use the relevant Application; or
2.5.4 introduce, or permit the introduction of, any Virus or Vulnerability into the Application.
2.6 The Customer shall:
2.6.1 use all reasonable endeavours to prevent any unauthorised access to, or use of, the Application by any person other than an End User and, in the event of any such unauthorised access or use, promptly notify the Supplier; and
2.6.2 comply with any reasonable instruction issued by the Supplier which governs use of the Applications.
2.7 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless otherwise expressly agreed in writing by the Supplier.
3 SERVICES
3.1 The Supplier shall, during the Term:
3.1.1 provide the Services and access to the Application to the Customer on and subject to the terms of this Agreement; and
3.1.2 enable End Users to connect via the internet to the Application.
3.2 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours. The Supplier may amend the extent and availability of its customer support services its sole and absolute discretion from time to time.
3.3 Notwithstanding any other provision in this Agreement, the Customer acknowledges and agrees that it is responsible for first line support of the Application for End Users.
3.4 From time to time the Supplier may make new features, functionality, applications or tools available in respect of the Application and shall give the Customer prompt written notice of material modifications to Application which may impact on its functionality or availability to End Users.
4 DATA PROTECTION
The parties acknowledge and agree that no sharing or transfer of any personal data subject to applicable data protection laws in the United Kingdom shall take place between the Supplier and the Customer under this Agreement. Any personal data which the Customer processes in making the Application available to its own customers is the sole responsibility of the Customer.
5 THIRD PARTY PROVIDERS
5.1 The Customer acknowledges that the Application will enable or assist it or any End Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does, and the End Users do, so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer or any End User (as the case may be), with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer or the relevant End User (as the case may be) and the relevant third party, and not the Supplier. The Supplier recommends that the Customer and End Users refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
5.2 The Application utilises a range of sources of information and technologies to provide the outputs for End Users. While the Supplier will make commercially reasonable efforts to provide reliable outputs to End Users, the Customer acknowledges that no warranty is given by the Supplier as to the accuracy or reliability of any information or outputs generated by the Application and hereby excludes any liability that may arise in relation to the information or recommendations provided to End Users or the Customer.
6 SUPPLIER’S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.
6.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by any use of the Application contrary to the Supplier’s instructions, or modification or alteration of the Application by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1. Notwithstanding the foregoing, the Supplier:
6.2.1 does not warrant that:
(a) the Customer’s or End User’s use of the Application will be uninterrupted or error-free;
(b) the Application will meet the Customer’s or any End User’s specific requirements; or
(c) the Application will be free from Vulnerabilities or Viruses; and
6.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Application be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7 CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
7.1.1 provide the Supplier with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be required by the Supplier,
in order to provide the Services;
7.1.2 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
7.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may delay the launch of the Application or limit availability of the Application as reasonably necessary;
7.1.4 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including provision of the Services;
7.1.5 if applicable, ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
7.1.6 be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the 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 or any End User’s network connections or telecommunications links or caused by the internet;
7.1.7 not make use of the Services or Application in a manner intended to avoid incurring Fees.
7.2 The Customer hereby grants to the Supplier a non-exclusive, non-transferable right during the Term to carry out any acts that would otherwise be restricted by any of the Customer’s Intellectual Property Rights for the sole purpose of enabling the Supplier to provide the Services to the Customer in accordance with this Agreement.
7.3 The Customer acknowledges and agrees that:
7.3.1 the Supplier may include the Customer’s name or the Customer’s Marks in a list of the Supplier’s customers in any medium or in any link to the Customer’s website; and
7.3.2 the Supplier may refer to the Customer, orally or in writing, as a customer of the Services for promotional, marketing and financial reporting purposes.
8 CHARGES AND PAYMENT
8.1 Fees shall accrue from the last date of signature in the Service Order and the Customer shall pay the Fees in accordance with the terms specified in the Service Order.
8.2 1.1 After the end date specified in the Service Order, the Fees shall be increased from the 1st December each year by the percentage increase in the Consumer Prices Index most recently published by the Office for National Statistics in the United Kingdom at that date. Where the change in Consumer Prices Index is less than zero percent, the Fees shall be not be reduced and shall continue at the rate used prior to 1st December of that year.
8.3 Where the Fees are calculated on a per room or per End User basis, the Supplier’s determination of such usage and the Fees shall, in the absence of manifest error, be final.
8.4 The Customer shall pay the Fees using the method specified in the Service Order.
8.5 For payments by invoice, the Supplier shall issue an invoice at or after the end of each Billing Period for the Fees payable in respect of that Billing Period. Those Fees shall be due 5 Business Days after the date of the relevant invoice.
8.6 For payments by direct debit, the Customer shall, on the Effective Date, provide to the Supplier relevant valid, up-to-date and complete contact and billing details and the Customer hereby authorises the Supplier to take payment when the Fees fall due.
8.7 If the Supplier has not received payment within 5 Business Days after the due date, and without prejudice to any other rights and remedies of the Supplier:
8.7.1 the Supplier may, without liability to the Customer, disable End User access to the Application and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
8.7.2 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 from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.8 All Fees and amounts stated or referred to in this Agreement:
8.8.1 shall be payable in pounds sterling;
8.8.2 are, subject to Clause 12.4.2, on-cancellable and, in the absence of manifest error, non-refundable;
8.8.3 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) or included in any direct debit payment at the appropriate rate.
8.9 The Customer waives, to the extent permitted by law, all claims relating to Fees unless claimed within 40 Business Days of the date of the relevant invoice any rights.
9 PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Application (whether white-labelled with the Customer’s Marks or not) and the Supplier’s Marks. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, or in any Intellectual Property Rights or any other rights or licences in respect of the Services, or the Supplier’s Marks.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Supplier’s Marks that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10 CONFIDENTIALITY
10.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives on or after the date of this Agreement in connection with the supply of the Services and the Application, including but not limited to:
10.1.1 the terms of this Agreement or any agreement entered into in connection with this Agreement;
10.1.2 any information that would be regarded as confidential by a reasonable business person relating to:
(a) the business, assets, affairs, customers, clients, suppliers, or plans of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(b) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
10.1.3 any information developed by the parties in the course of carrying out this Agreement.
10.1.4 Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
10.2 The provisions of this clause shall not apply to any Confidential information that:
10.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
10.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
10.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
10.2.4 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
10.3 Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
10.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
10.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 10.
10.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
10.4.1 It informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
10.4.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
10.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
10.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Clause 10 are granted to the other party, or to be implied from this Agreement.
10.8 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (and also, in the case of the Customer only, by the End Users) in breach of the terms of this Agreement.
10.9 The Supplier shall not be responsible to the Customer for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, except any third party subcontracted by the Supplier to perform services related to the Application.
10.10 The above provisions of this Clause 10 shall survive termination of this Agreement, however arising.
10.11 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
11 INDEMNITY
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer’s Marks.
11.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the use of the Application or any of the Supplier’s Marks by the Customer in accordance with this Agreement infringes any third party Intellectual Property Rights in the United Kingdom as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims.
11.3 The obligations of the Customer and the Supplier under Clause 11.1 and Clause 11.2 respectively are conditional on:
11.3.1 the indemnifying party being given prompt notice of any relevant claim;
11.3.2 the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and
11.3.3 the indemnifying party being given sole authority to defend or settle such claim.
11.4 Except as specifically provided in this Agreement, the enforcement and protection of a party’s Intellectual Property Rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.
11.5 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Application, replace or modify the Application so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer.
11.6 In no event shall the Supplier, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
11.6.1 a modification of the Application by anyone other than the Supplier;
11.6.2 the use of the Application by the Customer or any End User to the extent such infringement relates to any Customer Intellectual Property Rights;
11.6.3 the use of the Application by the Customer or any End User in a manner contrary to the instructions given to the Customer by the Supplier; or
11.6.4 the use of the Application by the Customer or any End User after notice to the Customer of the alleged or actual infringement from the Supplier or any appropriate authority.
11.7 The foregoing and Clause 12.4.2 states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12 LIMITATION OF LIABILITY
12.1 This Clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer or any End User:
12.1.1 arising under or in connection with this Agreement;
12.1.2 in respect of any use made by the Customer or any End User of the Services or any part of them; and
12.1.3 in respect of any representation, statement or any act or omission (including negligence) arising under or in connection with this Agreement.
12.2 Except as expressly and specifically provided in this Agreement:
12.2.1 the Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer or any End User in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
12.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
12.2.3 the Services and the Application are provided to the Customer and the End Users on an “as is” basis.
12.3 Nothing in this Agreement excludes the liability of the Supplier:
12.3.1 for death or personal injury caused by the Supplier’s negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 Subject to Clause 12.2 and Clause 12.3:
12.4.1 the Supplier shall not be liable whether in delict (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
12.4.2 the Supplier’s total aggregate liability in contract (including in respect of the indemnity at Clause 11.2), delict (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 the total fees paid for the Services during the 12 months immediately preceding the date on which the breach (or series of connected breaches) occurred.
13 TERM AND TERMINATION
13.1 This Agreement shall, unless otherwise terminated as provided in this Clause 13, commence on the Effective Date and shall continue in force, unless:
13.1.1 the Customer notifies the Supplier in writing of termination with no less than 20 Business Days notice, such notice not to take effect any earlier than the end date specified in the Service Order; or
13.1.2 otherwise terminated in accordance with the provisions of this Agreement.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
13.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
13.2.2 the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified to do so;
13.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.2.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
13.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
13.2.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
13.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
13.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 13.2.3 to Clause 13.2.12 (inclusive);
13.2.13 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
13.2.14 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
13.2.15 if the Customer materially changes the scope of work under this Agreement, the Supplier may, upon written notice to the Customer, terminate this Agreement immediately. A material change in the scope of work shall mean any change that:
- increases the scope of work;
- requires the Supplier to perform work that is substantially different from the work originally contracted under this Agreement; or
- requires the Supplier to incur significant additional costs or resources not reasonably foreseeable at the time of entering into this Agreement.
13.3 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement at any time after the end date specified in the Service Order by providing not less than 30 days’ written notice.
13.4 On termination of this Agreement for any reason:
13.4.1 all licences granted under this Agreement shall immediately terminate;
13.4.2 each party shall return and make no further use of any documentation and other items (and all copies of them) belonging to the other party;
13.4.3 without limiting the effect of Clause 13.3.2, the Supplier may require the Customer immediately to return all copies of the Supplier’s Confidential Information and any other materials or to delete the same from the Customer’s computer and communications systems and devices used by the Customer (but not those used by any End User in relation to any Application), including such systems and data storage services provided by third parties (to the extent technically and legally practicable). The Customer may, at the Supplier’s request, be required to confirm in writing that all such copies have been returned or so deleted;
13.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
13.4.5 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including Clause 1 (Interpretation), Clause 4 (data protection), Clause 10 (Confidentiality), Clause 11 (Indemnity), Clause 12 (Limitation of liability) and Clause 13 (Term and termination), shall remain in full force and effect; and
13.4.6 any outstanding balance becomes immediately due and payable.
14 FORCE MAJEURE
Neither party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this Agreement by giving 30 days’ written notice to the affected party.
15 CONFLICT
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
16 VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17 WAIVER
17.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18 RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19 SEVERANCE
19.1 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.
19.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20 ENTIRE AGREEMENT
20.1 This Agreement constitutes the entire agreement between the parties.
20.2 Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21 ASSIGNATION
21.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
21.2 The Supplier may at any time assign, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.
22 NO PARTNERSHIP OR AGENCY
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 neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23 THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Third Party Rights) (Scotland) Act 2017.
24 NOTICES
24.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
24.1.1 delivered by hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
24.1.2 sent by email to the addresses specified in the Service Order (or an address substituted in writing by the party to be served).
24.2 A notice shall be deemed to have been received:
24.2.1 If delivered by hand, at the time the notice is left as the proper address;
24.2.2 If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
24.2.3 If sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
25 GOVERNING LAW
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 interpreted in accordance with the law of Scotland.
26 JURISDICTION
Each party irrevocably agrees that the courts of Scotland 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).
If there are any questions in relation to these terms please contact the following:
Stuart Cooper
Head of Operations & Finance
+44 7342 759 077
