Terms and Conditions
1. Definitions and construction
1.1 In this Agreement the following expressions shall apply (save where the context otherwise requires):
“Affiliate” means each and any Subsidiary or Holding Company of a party and each and any Subsidiary of a Holding Company of a party.
“Additional Services” means those additional services set out at the Order Form.
“Annual” means a period of 12 consecutive calendar months and “annually” shall be construed accordingly
“Commencement Date” means the date set out in the Order Form on which the Initial Period commences.
“Customer Business Data” means all anonymised commercial and financial business data produced as part of the Hosted Services.
“Customer Data” means all data processed by Provider or otherwise provided to Provider pursuant hereto, including but not limited to Personal Data and the Customer Business Data.
“Customer Equipment” means the hardware and software which the Customer is required to have in use in order to use and enable the Hosted Services to be provided in accordance with this Agreement.
“Data Controller” shall have the meaning of ‘controller’ set out in Article 4(7) of the UK GDPR.
“Data Processor” shall have the meaning of ‘processor’ set out in Article 4(8) of the UK GDPR.
“Data Protection Legislation” means the DPA, the GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.
“DPA” means the Data Protection Act 2018.
“Downtime” means a period during Service Hours during which the Software is inaccessible by the Customer.
“Extension Period” means a mutually agreed period commencing at the end of the Initial Period or at the end of the previous Extension Period.
“GDPR” means the UK GDPR as retained in UK Law by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 and/or such other legislation as may give effect to its terms in England and Wales during the term of this Agreement.
“Guidelines” means the guidelines of the Customer set out in the Order Form in relation to the use of the Hosted Services.
“Hosted Services” means any modules of the cloud-based proprietary manufacturing transformation platform of Quber Tech and any new services that Quber Tech may introduce as a Service to which Customer may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the Software.
“Implementation Fee” means the fee which is specified in the Order Form for the provision of custom development activities to the software and hosted services, data processing support, onboarding support and training activities
“Initial Period” means the period specified in the Order Form commencing on the Commencement Date.
“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
“Month” means a calendar month and “monthly” shall be construed accordingly.
“Order Form” means the counter-signed proposal for the provision of services by Provider to the Customer.
“Outage” means an instance of Downtime.
“Personal Data” has the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
“Processing” and “Process” have the meaning set out in Article 4(2) of the GDPR.
“Representative” the person appointed by a party to represent its interests hereunder in respect of the management and provision of the Hosted Services.
“Server” the computer(s) used by Provider to provide the Software.
“Service Hours” means the hours during which the Hosted Services are to be provided as set out in the Order Form. References to "hour(s)" and "minute(s)" in this Agreement will, unless otherwise indicated, be taken only to refer to the elapse of time during Service Hours.
“Service Interruption” means a period during Service Hours during which there is partial loss of access to or functionality of the Software.
“Service Levels” means the levels of performance to be provided to the Customer by Provider as set out in the Order Form.
“Software” means the software used by Provider to provide the Hosted Services which is either Provider’s proprietary software or third party software in respect of which Provider has a licence.
“Standard Features” means the features and functionalities of the Software and Hosted Services that are available out of the box at the time of signing the Order Form without any customisations or modifications.
“Subscription” means licensing model under which the Customer is granted access to the Provider’s Software and Hosted Services set out in the Order Form
“Subscription Fee” the fee which is specified in the Order Form for the provision of the Hosted Services during the Initial Period and any Extension Periods.
“Term” means the effective term of this Agreement.
“User” means a user of the Software Service working for the Customer either as an employee or contractor or a Customer Affiliate providing services exclusively to the Customer.
“Working Day” means 0800 – 17.30 Monday to Friday excluding UK bank and public holidays.
1.2 The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
1.3 Unless the context otherwise so requires:
1.3.1 references to Provider and the Customer include their permitted successors and assigns;
1.3.2 references to statutory provisions include those statutory provisions as amended or re-enacted;
1.3.3 references to any gender include all genders;
1.3.4 words in the singular include the plural and in the plural include the singular.
1.4 In the event of any conflict between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of this Agreement shall prevail. In the event of any conflict between the terms of this Agreement and a Order Form, the Order Form will prevail.
1.5 Holding company shall be construed in accordance with section 1159 of the Companies Act 2006.
1.6 Subsidiary shall be construed in accordance with section 1159 of the Companies Act 2006.
2. Hosted Services
2.1 Provider agrees with effect from the Commencement Date in consideration of the payment of the Subscription Fee by the Customer to supply the Hosted Services and grant the Customer the right to use the Software on a non-exclusive, non-transferable basis upon the terms and conditions of this Agreement.
2.2 The Provider may, where applicable, supply one or more Additional Services to the Customer, subject to an additional charge as further detailed in the Order Form and as set forth in the Order Form. In the event the Customer requires any Additional Services after the Commencement Date, the scope and price of those Additional Services shall be agreed between the parties and from the date of provision of those services shall form part of this Agreement as an Additional Service.
2.3 The Customer accepts that it shall in no circumstances be permitted to:
2.3.1 reproduce, edit, create derivative works of, sell or in any way commercially exploit any part or aspect of the Software;
2.3.2 outsource the Hosted Services or Software provided under this Agreement to third parties;
2.3.3 attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the Software (including any underlying software or any part of it) that is used to provide the Hosted Services, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and
2.3.4 to observe, study or test the functioning of the Software (including any underlying software or any part of it) that is used to provide the Hosted Services, except and only to the extent that such restriction is prohibited pursuant to section 50BA of the Copyright, Designs and Patents Act 1988.
3. Duration
This Agreement shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue for the Initial Period and shall automatically extend for 12 months (Extension Period) at the end of the Initial Period and at the end of each Extension Period.
4. Fees
4.1 The Customer undertakes to pay the Subscription Fee for the Hosted Services on an annual basis in advance as well as any additional fees to Provider for any other services provided by Provider, such charges to be based on Provider's then current charging rates.
4.2 Provider shall send to the Customer an invoice in respect of the Subscription Fee at least 7 days in advance of the next payment period or as otherwise agreed in writing.
4.3 The Subscription Fee is set out annually in the Order Form but will be applied on a pro-rated basis for any Extension Periods.
4.4 Unless otherwise stated herein, all invoices are payable within 30 days after the date thereof unless otherwise agreed in writing.
4.5 Provider shall be entitled to charge the Customer interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) on a daily basis at the rate of 3 per cent per annum above the base rate from time to time of Barclays Bank plc from the due date therefor until payment.
4.6 Provider shall be entitled to increase the Subscription Fee with effect from each anniversary of the Commencement Date by giving at least 60 days’ prior written notice to the Customer.
4.7 All sums due under this Agreement are expressed exclusive of VAT but will be subject to VAT which will be payable by the Customer
5. Service Levels and Support
5.1 Provider undertakes with the Customer that it will use its reasonable endeavours to ensure that the Hosted Services and each component thereof will, subject to Clauses 13.7 and 17, be provided to the levels of performance specified in the Service Levels save where otherwise expressly provided for by this Agreement.
5.2 Provider will provide assistance to the Customer by telephone, e-mail or online chat as set forth in the applicable Order Form.
5.3 The Provider reserves the right to make modifications on how it provides support, however this will not reduce the support level. The Provider will notify any changes to its support model and will use reasonable endeavours to review all requests for improvement and new features however shall have no obligation to provide any modifications to the Hosted Services.
6. Online Availability
6.1 The Hosted Services will be available to the Customer for a minimum of 98% of the Service Hours. The percentage of online availability will be calculated on a monthly basis and will be a reflection of the availability of the Hosted Services over the total number of “Service Hours” for the Month.
7. Recovery times for System Failures
7.1 Provider shall provide to the Customer the following recovery times:
7.1.1 Complete System Failure - where it is necessary to completely re-build the server - within 24 hours of the fault being first fully reported to Provider.
7.1.2 System failure - where a single element can be replaced with a functioning one, without the need to re-boot the Server - within 24 working hours of the fault being first fully reported to Provider.
8. Outages, Service Interruptions and Changes to Hosted Services
8.1 Housekeeping tasks will be performed between the hours of 18:00pm and 06:00am.
8.2 Server operating system patches and upgrades will only be applied to the Server, should they be required to ensure continued support by the operating system vendor.
8.3 Outages or Service Interruptions may be made by Provider when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Hosted Services. Provider will use reasonable endeavours to minimise the Outages or Service Interruptions that may be caused by a change.
8.4 If Outages or Service Interruptions are required under Clause 8.1, Provider will endeavour to schedule them so as to minimise impact on the Hosted Services and will notify the Customer of the anticipated commencement time and its estimated duration.
8.5 Customer requested interruptions (including, but not limited to, request for an application server to be re-booted) will not be considered a breach in service, and will not be a factor when calculating breaches of the Service Levels for any purpose or give rise to any liability on the part of Provider. The Customer is required to request such interruptions via the customer support number listed in the Order Form. This type of request will require a minimum notice period of 14 Working Days.
8.6 If the Customer becomes aware of an event that has caused or may cause an unscheduled Outage without having been previously notified thereof by Provider, the Customer shall promptly provide initial notice to Provider via customer support methods listed in the Order Form.
8.7 Provider will have no liability for any Outage or Service Interruption which is caused by any third party software or integration supplied or requested by the Customer.
9. Warranties and indemnities
9.1 Provider warrants to and undertakes with the Customer that:
9.1.1 Provider will use its reasonable efforts to provide the Hosted Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
9.1.2 Provider has full right power and authority to provide the Hosted Services to the Customer in accordance with the terms of this Agreement;
9.1.3 Provider has all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation; and
9.2 Except for the express warranties set forth in this Clause 9, the Hosted Services are provided on an “as is” basis, and the Customer’s use of the Hosted Services is at its own risk. Provider does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. Provider does not warrant that the Hosted Services will be uninterrupted, error-free, or completely secure.
9.3 Provider does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
10. Customer Obligations and Warranties
10.1 The Customer is required at all times during the term to maintain all Customer Equipment required to use the Hosted Services in good order and working condition and to provide prior written notification to Provider of any changes it makes in respect thereof. At no time during the Term shall the Customer permit the Customer Equipment to fall below the specifications therefor contained in the the Order Form, and as updated by Provider from time to time and available on request.
10.2 The Customer shall provide all reasonable assistance, facilities and information to Provider as Provider may reasonably require in order to enable it to carry out its obligations under this Agreement.
10.3 In the event that the Customer is in breach of any of its obligations under this Agreement, then:-
10.3.1 Provider cannot be held responsible should the Hosted Services fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach, (where such breach was a major contributing factor leading to the Hosted Services failure);
10.3.2 Provider shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at Provider’s then current standard charging rates; and
10.3.3 Provider may without any liability terminate or suspend the Hosted Services without prejudice to any other pre-existing rights and obligations of either party.
10.4 The Customer represents, warrants and undertakes that:
10.4.1 it has and shall during the Term have the legal right and authority to use and have used the Customer Equipment as contemplated under this Agreement;
10.4.2 it will use the Hosted Services only for lawful purposes and in accordance with this Agreement;
10.4.3 any software, data, equipment or other materials provided by the Customer to Provider or employed by the Customer in its use of or receipt of the Hosted Services shall not infringe any Intellectual Property Rights, privacy or personal data interests of any third party, will only be provided to Provider in accordance with Data Protection Legislation and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.
10.5 In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Provider will have the right to suspend any related Hosted Services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider will give the Customer an opportunity to cure such breach, within 30 days. In such case once the Customer has cured the breach, Provider will promptly restore the Service(s).
11. Data Protection
11.1 The parties to this Agreement agree that, in relation to any Personal Data provided to Provider pursuant to this Agreement’s terms, that Provider shall process that Personal Data as a Data Processor on behalf of the Customer.
11.2 In order to ensure that the rights and freedoms of data subjects are respected, Provider warrants that it will process all Personal Data supplied to it pursuant to clause 11.1 in accordance with the following principles:
11.2.1 having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, the Data Processor will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against accidental loss or destruction;
11.2.2 it will not transfer Personal Data outside the EEA without ensuring that appropriate safeguards are in place and that any transfer is lawful under all applicable Data Protection Legislation;
11.2.3 it will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the GDPR, subject to the Data Controller reimbursing it for the cost of the same;
11.2.4 it will notify the Data Controller, insofar as reasonably possible, of any relevant requests for the disclosure of Personal Data which may be made to it and which it considers that it is legally obliged to respond to, subject to the Data Controller reimbursing it for the cost of the same;
11.2.5 it shall report to the Data Controller any suspected data breach concerning the Personal Data which comes to its attention and shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject to the Data Controller reimbursing it for the cost of the same;
11.2.6 it shall, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the Processing in question, that it complies with Data Protection Legislation; and
11.2.7 at the written instruction of the Data Controller securely delete or return Personal Data and copies thereof to the Data Controller on termination of this Agreement unless Union or Member State law requires storage of the Personal Data.
12. Security
12.1 Each party recognises that it is impossible to maintain flawless security but (where relevant) Provider shall take all reasonable steps to prevent security breaches in its servers' interaction with the Customer and security breaches in any interaction with resources or users outside of any firewall that may be built into Provider’s servers.
12.2 The Customer is responsible for maintaining the confidentiality of any passwords which are required to access the Software and is solely responsible for any damage caused by any such unauthorised access.
13. Limitation of Liability
13.1 Except as expressly stated in Clause 13.4, Provider shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
13.1.1 special damage, even though Provider was aware of the circumstances in which such special damage could arise;
13.1.2 loss of profits;
13.1.3 loss of anticipated savings;
13.1.4 loss of business opportunity;
13.1.5 loss of or goodwill;
13.1.6 loss of or damage to data.
13.2 To the extent that liability is not excluded by Clauses 13.1, 13.5, 13.6 or otherwise, the total liability of Provider, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed in aggregate a sum equal to the Subscription Fee payable by the Customer during the Initial Period or any subsequently agreed Subscription Fee for a subsequent period during which the liability arises.
13.3 The Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written` or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) Provider shall have no liability otherwise than pursuant to the express terms of this Agreement.
13.4 The exclusions in Clause 13.1 shall apply to the fullest extent permissible at law but Provider does not exclude liability for:
13.4.1 death or personal injury caused by the negligence of Provider, its officers, employees, contractors or agents; or
13.4.2 fraud or fraudulent misrepresentation; or
13.4.3 breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
13.4.4 any other liability which cannot be excluded by law.
13.5 Provider shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond Provider's reasonable control.
13.6 The Customer accepts that Provider is in no way liable for any virus or other contaminants which enter the Customer's email system or computer network via email.
13.7 Provider shall not be liable for any interruptions to the Hosted Services or Outages arising directly or indirectly from:-
13.7.1 interruptions to the flow of data to or from the internet;
13.7.2 changes, updates or repairs to the network or the Software subject to Provider striving to minimise the interruptions/outages that may be caused by such change;
13.7.3 the effects of the failure or interruption of services provided by third parties;
13.7.4 factors set out in Clause 17;
13.7.5 any actions or omissions of the Customer (including, without limitation, breach of the Customer's obligations set out in this Agreement or the Order Form) or any third parties;
13.7.6 Problems with the Customer’s equipment and/or third party equipment;
13.7.7 interruptions to the Hosted Services requested by the Customer.
13.8 The Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Subscription Fee has been calculated on the basis of the limitations and exclusions in this Clause 13 and that the Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 13.
14. Intellectual Property Rights
14.1 Without prejudice to the Customer’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by Provider in connection with or related to the provision of the Hosted Services hereunder.
14.2 Provider warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Hosted Services in accordance with this Agreement.
14.3 The Customer hereby grant to Provider:
14.3.1 A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate data provided by the Customer or resulting from the Hosted Services for the purposes of using the data for the provision of the Hosted Services;
14.3.2 A perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, reproduce, and manipulate Customer Business Data (which shall be processed in an anonymised form) in order to use such data for machine learning, benchmarking and in order to evolve and improve the Hosted Services and in order to create new products and services in the future;
14.3.3 A non-exclusive, royalty-free, world-wide licence during the Term to use, the Customer’s trade marks for the purpose of the provision of the Hosted Services.
14.4 Subject to any contrary provision in this Agreement, Provider undertakes only to use the Customer’s trade marks for the purpose of providing the Hosted Services.
15. Termination
15.1 Either party may give written notice to the other party, not later than 60 days before the end of the Initial Period or the relevant Extension Period, to terminate this Agreement at the end of the Initial Period or the relevant Extension Period, as the case may be.
15.2 For the purposes of this Clause 15, the following events shall be deemed “acts of default”:
15.2.1 Notwithstanding clause 4.5, if the Customer fails to pay any moneys due pursuant hereto within 7 days of the due date therefor;
15.2.2 if a party commits any material breach of any term of this Agreement (other than one falling under Clause 15.2.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 60 days of a written request by the other party to remedy the same;
15.2.3 if a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
15.3 If the Customer commits an act of default then Provider may forthwith suspend the provision of the Hosted Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement or give rise to any service credits.
15.4 If either party commits an act of default, the other party may terminate this Agreement by notice in writing forthwith.
15.5 Provider shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the Customer if the Customer:
15.5.1 undergoes a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of the Customer; or
15.5.2 sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
15.5.3 disputes the ownership or validity of Provider's Intellectual Property Rights.
15.6 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15.7 In the event of termination of this Agreement:-
15.7.1 the Customer agree promptly to pay to Provider all outstanding payments; any pre-paid Subscription Fees that apply to the period after termination shall be refunded.
15.7.2 Provider’s entitlement to use the Customer’s trademarks ceases immediately except as necessary for the provision of any post-termination services;
15.7.3 Provider may in its sole discretion agree to provide any assistance reasonably requested by the Customer in connection with the hand-over to a third party of any services provided by Provider hereunder, and the Customer shall pay Provider in accordance with Provider’s then current standard rates for any such assistance;
15.7.4 the Customer’s right to receive the Hosted Services shall cease automatically, save that Customer Data may be extracted for up to 30 days after termination of the agreement for an additional fee to be agreed between the parties;
15.7.5 subject to clause 14.3.2, each party shall immediately return to the other all property and materials containing Confidential Information (as defined in Clause 16) belonging to the other.
15.8 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination.
16. Confidentiality and Ownership of Customer Data
16.1 Subject to Clause 16.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (Confidential Information).
16.2 Provider hereby undertakes not without the Customer’s written consent disclose the Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Hosted Services and who have, and to the extent that they have, a need to know the same; and
16.3 The provisions of Clause 16.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
16.3.1 already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;
16.3.2 in the public domain other than as a result of a breach of this clause; or
16.3.3 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.
16.4 Each of Provider and the Customer hereby undertakes to the other to make all relevant employees agents and sub‑contractors aware of the confidentiality of the Information and the provisions of this Clause 16.
16.5 For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of the Customer and may only be used by Provider in line with the terms of this Agreement.
16.6 Provider reserves the right to use all or part of any program, services or materials produced for or acquired on behalf of the Customer for demonstrating its expertise to potential Customers, subject always to the provisions of this Clause 16.
16.7 The provisions of Clause 16 shall remain in full force and effect notwithstanding any termination of this Agreement.
17. Force majeure
17.1 Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub‑contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike or labour dispute (except involving a party’s own employees), pandemic, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
17.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
17.3 If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre‑existing rights or obligations of either party.
18. Waiver
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
19. Notices
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or email (such email to be confirmed by letter posted within 12 hours) to the address of the other party set out in the Order Form (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served if delivered at the time of delivery and if sent by post upon the expiration of 48 hours after posting and if sent by email upon the expiration of 12 hours after dispatch subject to confirmation by letter as set out above.
20. Publicity
No announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities by either of the parties without the prior written consent of the other party.
21. Invalidity and severability
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
22. Entire agreement
22.1 Subject to Clause 22.2, this written Agreement (including the Schedules) and the Order Form constitute the entire agreement between the parties hereto relating to the subject matter hereof. Nothing in this Clause 22.1 or Clause 13.3 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or Third Party appointed under Clause 26 may allow reliance on the same as being fair and reasonable.
22.2 No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
23. Successors
This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
24. Assignment
Neither party will be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without the prior consent of the other party, such consent not to be unreasonably withheld or delayed.
25. Sub‑contracting
Provider shall be entitled to sub‑contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Hosted Services itself.
26. Disputes
26.1 All disputes or differences which shall at any time hereafter arise between Provider and the Customer in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Provider and the Customer shall jointly nominate.
26.2 If Provider and the Customer shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated at the request of either Provider or the Customer by the President for the time being of the British Computer Society.
26.3 The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Provider and the Customer.
27. Law
This Agreement shall be governed by and construed in accordance with English law and (subject always to Clause 26) the parties submit to the exclusive jurisdiction of the courts of England and Wales.
28. Third Party Rights
No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.