TERMS OF USE
Last Updated: August 2024
1. Interpretation
1.1. The definitions and rules of interpretation in this clause apply in this agreement.
Agreement Summary: the agreement summary sheet above.
Applicable Data Protection Laws: means:
a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the Services as set out on the Agreement Summary.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5 or clause 9.6.
Customer: the person, firm or company named on the Agreement Summary who purchases the Services from the Supplier.
Customer Data: the data inputted by the Customer, Authorised Users or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer's use of the Services but excluding the Supplier Data.
Documentation: the document made available to the Customer by the Supplier online via the web address notified by the Supplier to the Customer from time to time, which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date set out on the Agreement Summary.
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Term: as set out in the Agreement Summary.
Normal Business Hours: 8.00 am to 5.00 pm local UK time, each Business Day.
Output: Any content in any format created by the Software as a result of the Customer using the Services and made available to the Customer.
Payment Terms: the payment terms for the Charges as set out in the Agreement Summary.
Services: the subscription services provided by the Supplier to the Customer under this agreement via the website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the Services.
Supplier: Alphaloops Ltd (company no: 15346667) whose registered office is at 20 Wenlock Road, London, England, N1 7GU. Email address for notices: info@alphaloops.ai
Supplier Data: means usage data and technical data associated with the Customer’s use of the Services or the performance of the Agreement, as well as other anonymized data defined in clause 3.6. Supplier Data may be retained by the Supplier after termination of this agreement for the continued purpose of improving the Services.
Third-party Services: means other applications or services that are not provided by the Supplier but which (i) can be accessed or obtained by the Customer by clicking on links provided on the Supplier’s website or Software, or (ii) are interconnected with the Software and for which the Customer explicitly directs and grants permission to the Supplier to receive Customer Data from or to send Customer Data to.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2. Clause 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. 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 e-mail.
1.10. References to clauses are to the clauses of this agreement.
2. User Subscriptions
2.1. Subject to the Customer paying the Charges and to the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation solely for the Customer's internal business operations.
2.2. In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for their use of the Services and Documentation and shall keep that password confidential.
2.3. The 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;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4. The Customer shall not:
a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under 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; or
d. subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, 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 the Supplier's network and information systems.
2.5. The 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 the Supplier.
2.6. 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 agreed with the Supplier.
3. Services and use of AI
3.1. The Supplier shall, for the duration of this agreement, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
3.2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
a) planned maintenance carried out during the maintenance window of 10.00 pm to 4.00 am UK time; and
b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
3.3. 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 in accordance with the Supplier’s support services policy in effect at the time that the Services are provided.
3.4. The AI-driven features within the Services are designed to enhance user experience and productivity. However, the accuracy and reliability of AI-generated outputs may vary based on various factors, including the quality and accuracy of the input data and the complexity of the task. The Customer acknowledges that AI technology has its limitations, including potential biases and inaccuracies. The AI tools within the Services are intended to assist and augment human decision-making processes. They are not a substitute for professional judgment or expertise. The Customer and its Authorised Users shall be responsible for how they choose to use the AI features within the Services and for independently verifying any Output produced by the Services using AI.
3.5. During the term of this agreement, the Supplier reserves the right to use the Customer Data and Outputs for the purpose of improving the Services.
3.6. The Supplier shall be entitled to make a copy of any Output (and of the corresponding questions uploaded by the Customer which generated the Output) on an anonymised/pseudonymised basis. Such data shall be part of the Supplier Data and shall not constitute Customer Data in such format.
3.7. The Supplier may provide access to Third-party Services which the Customer may elect to use or direct the Supplier to use. The Customer acknowledges that (i) it shall assume all responsibility and liability for the use of the Third-party Services and the use of Customer Data and Output by the Third-party Services and (ii) the Supplier shall have no liability due to services performed by the Third-party Services.
4. Data Protection
4.1. For the purposes of this clause 4, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
4.2. Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
4.3. The parties have determined that for the purposes of the Applicable Data Protection Laws the Supplier shall process personal data as processor on behalf of the Customer on the terms set out in this clause 4. 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 are as set out below:
4.4. Without prejudice to the generality of clause 4.2 the Customer will ensure it has all necessary and appropriate consents and notices in place to enable the lawful transfer of personal data to the Supplier or lawful collection of the same by the Supplier for the duration and purposes of this agreement.
4.5. Without prejudice to the generality of clause 4.2 the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
a) process that personal data only on the documented written instructions of Customer unless the Supplier is required by applicable law to otherwise process that personal data. Where the Supplier is relying on applicable law as the basis for processing personal data, the Supplier shall notify Customer of this before performing the processing required by the applicable law unless the applicable law prohibits the Supplier from so notifying Customer;
b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (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);
c) not transfer any personal data outside of the EEA unless the prior written consent of the Customer has been obtained;
d) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
e) assist Customer in responding to any request from a data subject and in ensuring compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the Customer on becoming aware of a personal data breach;
g) at the written direction of Customer, delete or return personal data and copies thereof to Customer on termination of the agreement unless required by applicable law to store the personal data; and
h) maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and allow for remote audits of relevant documentation by Customer or Customer’s designated auditor.
4.6. The Supplier shall appoint or change any sub-processors with the general authorisation of the Customer. The Supplier shall confirm that:
a) it shall impose on all sub-processors the same data protection obligations as set out in clause 4; and
b) it shall remain fully liable for the actions of its sub-processors at all times.
5. Supplier's Obligations
5.1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2. The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services 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 5.1.
5.3. The Supplier:
a) does not warrant that:
i. the Customer's use of the Services will be uninterrupted or error-free; or
ii. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
iii. the Software or the Services will be free from Vulnerabilities or Viruses; or
iv. the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
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, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.4. 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.
5.5. 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.
5.6. The Supplier shall follow its standard back-up and archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the 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 the Supplier in accordance with its standard back-up and archiving procedures. The 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 the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
6. Customer's Obligations
6.1. The Customer shall:
a) provide the Supplier with:
i) all necessary cooperation in relation to this agreement; and
ii) all necessary access to such information as may be required by the 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 activities under this agreement;
i) 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 adjust any agreed timetable or delivery schedule as reasonably necessary;
ii) ensure that the 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;
iii) 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 without limitation the Services;
iv) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
v) 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 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 network connections or telecommunications links or caused by the internet.
6.2. 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.
7. Charges and Payment
7.1. The Customer shall pay the Charges in accordance with the Payment Terms by BACS or direct debit or otherwise as agreed with the Supplier.
7.2. If the Supplier has not received payment in accordance with the Payment Terms, and without prejudice to any other rights and remedies of the Supplier:
a) the Supplier may, without liability to the Customer, disable the Customer's passwords, accounts 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 4% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
7.3. All amounts and fees stated or referred to in this agreement:
a) shall be payable in the currency set in Agreement Summary;
b) are, subject to clause 11.3, non-cancellable and non-refundable;
c) are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
8. Proprietary Rights
8.1. Without prejudice to the provisions of clause 8.2, the Customer acknowledges and agrees that the 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 the 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.
8.2. The 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.
9. Confidentiality
9.1. Each party 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.
9.2. Subject to clause 9.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this agreement.
9.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
9.4. 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 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
9.6. The Supplier acknowledges that the Customer Data and the Output is the Confidential Information of the Customer.
9.7. The Supplier (having informed the Customer in advance) may refer to the Customer in any investor or prospective investor-related communications and may list the Customer’s name and logo on its website and in its marketing materials and content referring to the Customer as a client of the Supplier.
9.8. For the use of the Customer’s name on any social media of the Supplier, the Supplier shall obtain the Customer’s prior approval.
9.9. Upon termination of this agreement and subject to clause 3.6, each party shall erase all the other party’s Confidential Information from computer or communications systems and devices used by it (to the extent technically and legally practicable).
9.10. The above provisions of this clause 9 shall survive termination of this agreement, however arising.
10. Indemnity
10.1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
a) the Customer is given prompt notice of any such claim;
b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
c) the Customer is given sole authority to defend or settle the claim.
10.2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgement or settlement of such claims, provided that:
a) the Supplier is given prompt notice of any such claim;
b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
c) the Supplier is given sole authority to defend or settle the claim.
10.3. In the defence or settlement of any claim, the Supplier may procure the right for the 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 the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a) a modification of the Services or Documentation by anyone other than the Supplier; or
b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or
d) the Customer’s breach of this agreement.
10.5. The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of Liability
11.1. Except as expressly and specifically provided in this agreement:
a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the 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 the Customer "as is" and “as available”.
11.2. Nothing in this agreement excludes the liability of the Supplier:
a) for death or personal injury caused by the Supplier's negligence;
b) for fraud or fraudulent misrepresentation.
11.3. Subject to clause 11.1 and clause 11.2:
a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
b) the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 10.2), 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 not exceed an amount equal to the Charges paid during the 12 months immediately preceding the date on which the claim arose.
11.4. Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s intellectual property rights.
12. Term and Termination
12.1. This agreement shall commence on the Effective Date and unless terminated earlier in accordance with this clause 12, shall continue for the Initial Term. Not less than 1 month prior to the end of the Initial Term (or subsequent renewal term) the parties shall agree the commercial terms set out in the Agreement Summary for a renewal and this agreement will renew on that basis upon expiry of the Initial Term (or subsequent renewal term). If no agreement on commercial terms can be reached, then at the end of the Initial Term (or subsequent renewal term), this agreement shall terminate automatically without notice.
12.2. 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:
a) 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 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 and (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 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;
d) 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;
e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
f) 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;
g) 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);
h) 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;
i) 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;
j) 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;
k) 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 12.2(c) to (j) (inclusive); or
l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3. 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 return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
c) the Supplier may delete, destroy or otherwise dispose of any of the Customer Data (but not for the avoidance of doubt, the Supplier Data) in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the 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). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
d) 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. Force Majeure
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), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
14. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15. Waiver
No failure or delay by a 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.
16. 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.
17. Severance
17.1. 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.
17.2. If any provision or part-provision of this agreement is deemed deleted under clause 17.1 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.
18. Entire Agreement
18.1. This agreement 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.
18.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
18.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19. Assignment
19.1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
20. 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, 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).
21. 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 (Rights of Third Parties) Act 1999.
22. Counterparts
This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
23. Notices
23.1. 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, recorded delivery post or by email to the other party at its address set out in the agreement summary, or such other address as may have been notified by that party for such purposes.
23.2. 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. If sent by email, any notice shall be deemed to have been received at the time of transmission.
24. 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 construed in accordance with the law of England and Wales.
25. Jurisdiction
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) provided that either party may enforce any judgement of the courts of England and Wales in the courts of any jurisdiction.
