These Terms of Service (“Agreement”) constitute a contract between KEY ESG Limited with offices at 14 Wigmore Street, W1U 2RE, London, United Kingdom (“KEY ESG”), and you (“Customer”).
Customer agrees to be bound by the terms of this Agreement upon the earlier of: (a) its download, installation, access to or use of any of KEY ESG’s software or services (including the Services); or (b) its express consent to this Agreement (“Effective Date”).
This Agreement includes and incorporates any Order Form under which Customer purchased any of KEY ESG's software or services. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have proper authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use any KEY ESG software or services. In the event of any inconsistency or conflict between this Agreement and any Order Form, the Order Form will control.
The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of measuring ESG performance.
The Customer wishes to use the Supplier's service in its business operations.
The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in clause 2.2(c).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: shall be the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.
Customer Materials: all documents, information, data, items and materials in any form, whether owned by the Customer, its Authorised Users or a third party, which are provided by the Customer to the Supplier in connection with the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Initial Subscription Term: the initial term as described in the order form.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Order Form: means a quote, order form or other writing prepared by KEY ESG, executed by Customer, and accepted by KEY ESG that sets forth the specific Services that Customer is authorized to use and the applicable fees, volumes, payment schedule and initial subscription term.
Renewal Period: the period described in clause 13.1.
Services: the subscription services provided by the Supplier to the Customer through the Software.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the order form.
Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 and the Schedule which entitle Authorised Users to access and use the Services in accordance with this agreement.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
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.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 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 and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.6 A reference to writing or written includes email.
2. User subscriptions
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 8.1, the Supplier 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 Services during the Subscription Term solely for the Customer's internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that, save as otherwise authorised in writing by the Supplier:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;
(d) it shall permit the Supplier or the Supplier's designated auditor to audit the Customer’s use of the Services. Each 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; and
(e) if any of the audits referred to in clause 2.2(d) reveal that the Customer has underpaid Subscription 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 prices set out in the Schedule within 10 Business Days of the date of the relevant audit.
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 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 in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or
(f) introduce or permit the introduction of, any Virus 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, 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.
3. Additional user subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 2 of the Schedule and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 3 days of its approval of the Customer's request.
3.3 If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of the Schedule and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
4.2 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard support services.
5. Data protection
5.1 Both parties will comply with all applicable requirements of Data Protection Legislation.
5.3 The Supplier and the Customer acknowledge that in the course of the Services their staff will have access to personal data (as defined in the Data Protection Legislation), which may also be considered Confidential Information. The Supplier and the Customer will ensure that all of their respective employees, officers, representatives, contractors, subcontractors and advisers comply with the Data Protection Legislation.
6. Supplier's obligations
6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the specifications set out in the Schedule and 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 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.
6.3 The Supplier:
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free; or
(ii) the Services 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 Viruses.
(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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 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.
6.5 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.
7. Customer's obligations
7.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Materials, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations (including Data Protection Legislation) with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in 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;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to 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.
7.2 The Customer shall own all right, title and interest in and to all of the Customer Materials that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Materials.
7.3 The Customer warrants to the Supplier that all information provided by the Customer or on the Customer’s behalf to the Supplier is accurate and complete in all material respects, and the Supplier shall have no obligation to take any steps to confirm the accuracy of any such information. The Customer further warrants that the provision of this information to Supplier will not infringe any copyright or other third-party rights, and shall indemnify the Supplier against all liabilities suffered or incurred by the Supplier arising out or in connection with any claim for actual or alleged infringement of a third party’s Intellectual Property Rights.
8. Charges and payment
8.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 8 and the Schedule.
8.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 13.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 10 working days after the date of such invoice.
8.3 If the Supplier has not received payment within 10 days after the due date, 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 password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of 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 judgment.
8.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling
(b) are, subject to clause 12.3(b), 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.
8.5 The Supplier reserves the right (at its discretion) to annually increase the fees set out in the Schedule by an amount equal to the lower of: (i) 10% of the current applicable fees; or (ii) a price increase in line with the UK Consumer Prices Index (CPI) and any such price increase will become effective in respect of Services to be provided in the subsequent Renewal Period. The Supplier shall notify the Customer in writing at least 60 days before the commencement of any Renewal Period of any increase to the fees.
9. Proprietary rights
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services, excluding any Customer Materials. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services.
9.2 In relation to Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
(b) grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify the Customer Materials for the Term of this agreement for the sole purpose of providing the Services to the Customer.
10.1 Each party undertakes that it shall not, at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (“Confidential Information”), except where permitted by clause 10.2. Confidential Information shall not include information that is: (i) in or becomes lawfully part of the public domain (other than by disclosure in violation of this agreement); (ii) previously lawfully known to the recipient without an obligation of confidentiality; (iii) independently developed without use of Confidential Information; or (iv) lawfully obtained from third parties without an obligation of confidentiality.
10.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers, strictly on a need to know-basis and solely for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the agreement. 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 10;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(c) as may otherwise be permitted pursuant to this clause 10.
10.3 No party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement, provided that the Customer agrees that the Supplier may, during the Term or following termination or expiry of this agreement (and subject to compliance with the rest of this clause 10), use Customer’s Confidential Information on an aggregated basis for its own business purposes including, without limitation, Customer’s anonymised ESG data to draw conclusions on industry sector reporting (e.g benchmarking).
10.4 The Customer acknowledges that nothing in this agreement shall prevent the Supplier from providing the Services (including, without limitation, the Software and the same or similar industry benchmarking materials) to other customers during the Term, even if those are within the same industry as the Customer, provided that the Supplier ensures that appropriate safeguards are in place to prevent any unauthorised disclosure of Customer’s Confidential Information.
10.5 The Supplier acknowledges that certain information disclosed under this agreement may constitute or include information of a precise nature which has not been made public and which, if it were made public, would be likely to have a significant effect on the prices of such financial instruments (i.e. inside information under the Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2016 on market abuse (MAR)) (“Inside Information”). The Supplier further acknowledges that, under applicable legislation, recipients of Inside Information may be subject to restrictions on, inter alia, trading or causing someone else to trade in financial instruments relating to Customer and on disclosing Inside Information and, to the extent it is informed in writing by the Customer that any information may constitute or include Inside Information, it undertakes to only distribute such information to any other recipients after the provision of written approval to do so by the Customer and to inform each recipient that such information may constitute or include Inside Information. The Supplier undertakes to upon request of the Customer provide the Customer with the details of all recipients of Inside Information. To the extent that the Supplier complies with the provisions of this clause, it shall not have any liability to the Customer, or any third party as a consequence of the dissemination or disclosure of any Inside Information and the Customer shall indemnify and keep indemnified the Supplier against any liability arising for the Supplier resulting from the dissemination or disclosure of such Inside Information.
10.6 On termination or expiry of this agreement, each party shall:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
(b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) upon the written request of the other party certify in writing to that party that to the best of its knowledge it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
For the avoidance of doubt, the foregoing does not affect Supplier’s right under clause 10.3 above, which shall survive termination or expiry of this agreement.
10.7 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, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.8 The Customer agree to have its logo incorporated in the Supplier’s marketing materials. This includes the Supplier’s website.
10.9 The Customer agrees and covenants that he will not at any time during the Term and thereafter, make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Supplier or its business, or any of its employees or directors, provided that this clause does not, in any way, restrict or impede the Customer from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorised government agency.
10.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
10.11 The above provisions of this clause 10 shall continue to apply after termination or expiry of this agreement.
11.1 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, 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.
11.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and 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.
11.3 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.
11.4 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 by anyone other than the Supplier; or
(b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.5 The foregoing and clause 12.3(b) state 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.
12. Limitation of liability
12.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services 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 or instructions provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction (including, without limitation, any conclusions drawn from data point measurements used in respect of Sustainable Finance Disclosures Regulation (SFDR) reporting or for overall fund compliance with SFDR or other applicable law or regulation.
(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 are provided to the Customer on an "as is" basis.
12.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.1 and clause 12.2:
(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 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
12.4 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
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 for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the Initial Subscription Term or Renewal Period, as applicable; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
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:
(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 10 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 10 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 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 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;
(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 13.2(c) to clause 14.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(m) 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; or
(n) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
13.3 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;
(b) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices for the Services supplied to Customer, including interest thereto. In respect of any Services supplied to Customer but for which no invoice has been submitted together with any further sums that may be due under the provisions of clause 8, the Supplier may submit an invoice, which shall be payable within fourteen (14) days of Customer's receipt thereof;
(c) the Supplier shall on the Customer’s request promptly return or destroy all of the Customer Materials and all Confidential Information, customer data and other communications between the parties (and all copies of them), provided that:
(i) the Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of all such Customer Materials; and
(ii) the Supplier shall have the right to retain copies of the Confidential Information (which is part of Customer Materials) to the extent required to comply with legal requirements.
(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.
14. Force majeure
14.1 A “Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic (the parties acknowledging the Covid-19 pandemic at the Effective Date shall not qualify as a Force Majeure Event);
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party;
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
14.2 If a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3 If a Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than four (4) weeks, the party not affected by the event may terminate this agreement by giving two (2) weeks’ written notice to the Affected Party.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedule, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
19.1 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 and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
20.2 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.
21.1 The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21.2 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.
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, 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).
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 (Rights of Third Parties) Act 1999.
24.1 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.
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by 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
(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):
(i) Supplier: email@example.com
(ii) Customer: as defined on the order form
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
25.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. 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 England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This has been entered into on the date stated at the beginning of it.