Last updated: 12 January 2022
The Supplier wishes to provide, and the Customer wishes to purchase, the Supplier’s web-based mapping and associated services in respect of the Customer’s Site, and any other Software and Services as identified on the Order Form and any Statement of Work.
It is agreed as follows...
1. Definitions and Interpretation
1.1 In this Agreement the following terms shall have the following meanings:
“AUP” means the Supplier’s Acceptable Use Policy, made available on the Supplier’s website from time to time;
“Availability” means that, as recorded by the Supplier’s equipment, the Hosted Service is materially available for access by the Customer;
“Background IPR” means all Intellectual Property Rights or other proprietary rights owned by or licensed to a party before the Effective Date or developed by a party independently of this Agreement;
“Confidential Information” means:
(a) the existence and terms of this Agreement;
(b) all information disclosed to the relevant party by or on behalf of the other party in connection with this Agreement and which relates to the provisions of this Agreement, the negotiations relating to this Agreement or the subject matter of this Agreement;
(c) know-how, secret processes, technical and business methods and methodologies and inventions disclosed to the relevant party by or on behalf of the other party in connection with this Agreement; and
(d) all other information disclosed to the relevant party by or on behalf of the other party (whether before or after the date of this Agreement) which is marked as or has been otherwise indicated to be confidential or which derives value to a party from being confidential or which would be regarded as confidential by a reasonable business person;
“Consultancy Services” means any services which the Supplier agrees to provide and the Customer agrees to purchase under a Statement of Work;
“Consumer User” means a natural person who physically visits or resides at the Site or who accesses an electronic representation of the Site online.
“Customer” means the person identified as such on the Order Form;
“Customer Background Materials” means any materials in which Customer Background IPR subsists;
“Customer Group” means the Customer and any corporate body which is from time to time a holding company of the Customer, a subsidiary of the Customer or a subsidiary of a holding company of the Customer;
“Documentation” means any user instructions, release notes, manuals or other materials generally made available by the Supplier from time to time regarding the use of the Hosted Services and Software;
“Effective Date” means the date of this Agreement;
“Enterprise User” means a legal entity identified as such on an Order Form;
“Fees” means the fees payable by the Customer for the Services and Software;
“Force Majeure” means the occurrence of any cause or event that is beyond the reasonable control of the affected party. Force Majeure may include war, riot, civil commotion, terrorist attack, fire, flood, storm, disruption, failures of transport, utilities, computers or networks or strikes, lockouts or other industrial disputes;
“Hosted Service” means the web-based mapping services provided by the Supplier in respect of the Site;
“Initial Term” means the period identified as such on the Order Form;
“Insolvency Event” means where a person ceases or threatens to cease to carry on business, is found unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or undergoes any similar or equivalent process in any jurisdiction;
“Intellectual Property Rights” means patents, petty patents, utility models, trade marks, design rights, applications for any of the foregoing, copyright, moral rights, database rights, semi-conductor topography rights, trade or business names, domain names, website addresses whether registrable or otherwise, (including applications for and the right to apply for registration of any such rights), and any similar rights in any country whether currently existing or created in the future, in each case for their full term, together with any renewals or extensions;
“Map File” means an image or images in .pdf format (or such other format as the Supplier may from time to time specify) of part or all of the full map of the Site made available to the Customer through the Hosted Service from time to time on payment of the relevant Fee by the Customer;
“Mapping Data” means all information, data and materials provided, produced, gathered, received or developed by the Supplier, including:
(a) mapping information derived from the underlying mapping materials provided by either party identifying the locations of items on the map;
(b) labels and other descriptors and information identifying or otherwise relating to items on the map; and
(c) any other underlying information visible in, or which can be identified through analysis of, the Mapping Products;
“Mapping Database” means any database of or containing any Mapping Data;
“Mapping Products” means any Map File and/or Template Output provided to or accessed by the Customer;
“Non-public Information” means specific information contained in any materials provided by the Customer to the Supplier that the Customer does not wish to be viewable by Permitted Third Party Users and expressly notifies Supplier in writing at the time such materials are provided that Permitted Third Party Users are not permitted to view;
“Order Form” means the Order Form signed by the parties which identifies the Services and Software to be provided;
“Permitted Third Party User” means a Consumer User or an Enterprise User;
“Physical Materials” has the meaning given in Clause 3.2.1;
“Renewal Term” means each period identified as such on the Order Form, running consecutively from the end of the Initial Term until the termination of this Agreement;
“SDK” or “Software Development Kit” means any software development kit provided by or on behalf of the Supplier to the Customer, including all updates to it provided to the Customer by or on behalf of the Supplier
“Service Levels” means the service levels specified in Schedule 1 (Service Levels);
“Services” means the services provided by the Supplier under this Agreement, including the Consultancy Services, Hosted Service and any support services or other services;
“Site” means the geographic location or locations identified on the Order Form;
“Software” means all software provided by or on behalf of the Supplier in connection with this Agreement, and includes all Software Applications and Software Development Kits;
“Software Application” means any software application provided by or on behalf of the Supplier to the Customer, including all updates to it provided to the Customer by or on behalf of the Supplier;
“Statement of Work” or “SOW” means a document agreed by the parties, setting out Consultancy Services to be provided;
“Supplier” means the person identified as such on the Order Form;
“Supplier Group” means the Supplier and any corporate body which is from time to time a holding company of the Supplier, a subsidiary of the Supplier or a subsidiary of a holding company of the Supplier;
“Template Output” means a view of the Map File, generally with associated information (such as prominent landmarks, major street names, route and directional information) in a specified format, orientation and resolution, in finished, human-readable form, for physical display within the Site or electronic display in relation to the Site, made available to the Customer through the Hosted Service from time to time on payment of the relevant Fee by the Customer;
“Term” means the period beginning on the Effective Date and ending on the termination or expiry of this Agreement;
“User Notice” means the terms that each individual Permitted Third Party User and each of the Customer’s users must agree to in order to use the Software and Hosted Service, as made available by the Supplier from time to time; and
1.2 In this Agreement, unless the context otherwise requires or the contrary intention appears:
(a) the singular includes the plural and vice versa, and reference to any gender includes the other genders;
(b) references to a person include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal personality);
(c) any reference to “subsidiary” and “holding company” have the meanings given in Section 1159 of the Companies Act 2006;
(d) the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions;
(e) all Statements of Work, the Schedules and the Background to this Agreement form part of it and take effect as if set out in this Agreement, and any reference to this Agreement includes the Statements of Work and Background; and
(f) references to Clauses, Schedules and Appendices refer to clauses of, and schedules and appendices to, this Agreement.
1.3 The headings in this Agreement are for convenience only and do not affect its interpretation.
2. Term
2.1 This Agreement shall begin on the Effective Date and shall continue until terminated in accordance with its terms.
3. Services
3.1 The Supplier shall make the Hosted Service available to the Customer in accordance with the terms and conditions of this Agreement and any Documentation provided by the Supplier from time to time relating to the use and operation of the Hosted Service. Access to the Hosted Service shall be by means of one or more of the leading web browsers (as may be specified by the Supplier from time to time) and/or (where agreed by the Supplier) a dedicated software application.
3.2 Subject to the Customer’s compliance with the terms and conditions of this Agreement, the Customer may make Map Files and Template Outputs available to Permitted Third Party Users for the purpose of Permitted Third Party User wayfinding only, as follows:
3.2.1 physical copies may be made available to Permitted Third Party Users in Customer printed materials (for example, signage, brochures, visitor guides, visitor maps (“Physical Materials”));
3.2.2 electronic copies may be made available for viewing only:
(a) on Customer operated displays at the Site;
(b) on the web, through a Supplier approved URL only; or
(c) by means of a dedicated software application, where this has been approved in advance by the Supplier in writing.
3.3 The Customer shall comply at all times during and after the Term with its obligations under Clause 10 (Intellectual Property Rights).
3.4 In connection with the Hosted Service, the Customer may also purchase Consultancy Services, Software Application licences and SDK licences from the Supplier.
3.5 The Software and Services to be provided shall be as identified on the Order Form or any amendment to this Agreement agreed in writing by the parties.
3.6 If the Supplier wishes to amend the terms of this Agreement, it shall inform the Customer (including via a message in the Hosted Service) 30 days in advance of the change. Unless agreed otherwise by the parties, any such amendment to the terms of this Agreement shall come into effect on the start of the next Renewal Term.
4. General Warranties
4.1 Each party warrants to the other that:
(a) it has all necessary power and authority to enter and perform its obligations under this Agreement;
(b) once duly executed, this Agreement will constitute legal, valid and binding obligations on it;
(c) it is not suffering from an Insolvency Event and is able to perform all of its obligations under this Agreement and will remain so throughout the Term; and
(d) it shall comply with all applicable laws and regulations in connection with this Agreement.
5. Supplier Warranties
5.1 The Supplier shall perform the Services in accordance with this Agreement.
5.2 The Supplier warrants that:
(a) during the Term, the Hosted Service shall perform in all material respects in accordance with the relevant Documentation;
(b) for 30 days from delivery the Software shall perform in all material respects in accordance with the relevant Documentation;
(c) it shall provide the Consultancy Services with reasonable skill and care and as agreed in this Agreement and each Statement of Work; and
(d) it shall use commercially reasonable endeavours to perform the Services covered by any Statement of Work by the date(s) agreed in such Statement of Work.
5.3 The Supplier’s commitments in this Agreement shall not apply to the extent:
(a) any Software is not properly installed (except where the failure is caused by installation by the Supplier);
(b) any Software or Hosted Service is not used in accordance with this Agreement and the Documentation;
(c) the Software or method of receipt or any output or product of the Hosted Service is modified, altered or added to by any person other than the Supplier or its authorised representative; or
(d) any breach is due to the Customer, or the Customer’s or any third party’s hardware, networks, systems, equipment or software.
5.4 The Supplier reserves the right to charge the Customer at its then-current rates for any assistance required by the Customer due to any issue set out in Clause 5.3 or any modification to any hosted maps or Mapping Data made using the Hosted Service or on the instructions of the Customer.
5.5 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise, are hereby excluded to the extent permitted by law. The Supplier does not warrant that the Software or the Hosted Services will be error-free or that access to them will be uninterrupted.
5.6 Any failure by the Supplier to meet its obligations under this Agreement shall be excused if such failure is caused by the failure by the Customer to perform its obligations under this Agreement.
6. Anti-Bribery
6.1 Each party undertakes to the other that it will fully comply with the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.
7. Customer Obligations
7.1 The Customer shall:
(a) provide the Supplier with access to the Site and any office facilities, computer system or network as requested by the Supplier for the purpose of providing the Services;
(b) promptly provide any co-operation, background materials or information requested by the Supplier for the purpose of providing the Services;
(c) provide access to its or its contractors’ personnel as requested by the Supplier for the purpose of providing the Services; and
(d) make any required decisions promptly.
7.2 The Customer shall be responsible for ensuring it has and properly maintains the appropriate hardware, software and network services to enable it to use the Services and Software.
7.3 The Customer shall not exceed any agreed limitations on its use of the Software or Services (for example, number of Permitted Third Party Users, number of users, volume of data transmitted, received or stored). If the Customer does exceed any such limitation on use, it shall pay additional Fees on the excess usage (for the full term of the Initial Term or then current Renewal Term) calculated at the Supplier’s then-current list price.
7.4 The Customer shall ensure that any passwords, licence keys or other access details are kept secure and confidential at all times. If the Customer becomes aware of any threatened or actual breach of security in respect of the above, it shall immediately notify the Supplier in writing and take such steps as are directed by the Supplier (without liability on the Supplier of any kind) to address such security breach.
7.5 Any modifications to any hosted maps or Mapping Data made using the Hosted Service or on the instructions of the Customer shall be the sole responsibility of the Customer and the Supplier shall have no liability for any losses arising from such changes.
7.6 The Customer shall permit the Supplier to audit the Customer’s records in order to establish the scope of the Customer’s use of the Services and the Software. This right may be exercised from time to time with reasonable prior notice. The Supplier may use a third party to conduct such audit, provided that the third party enters into confidentiality obligations no less onerous than those in this Agreement.
7.7 The Customer shall not use the Hosted Service in breach of the AUP or the User Notice.
7.8 The Customer shall be responsible for any breach of the terms of this Agreement, the AUP and/or the User Notice by any of its Customer Group Members, personnel, users, Permitted Third Party Users or contractors and any other person who accesses the Services using the Customer’s access credentials or systems (whether permitted to do so by the Customer or not).
7.9 If the Hosted Service is used with Customer or Permitted Third Party User credentials or systems in a manner which infringes the AUP or this Agreement, or if the Customer otherwise infringes this Agreement, the Supplier may suspend access to the Hosted Service until the Customer has demonstrated that the relevant infringement has been remedied. The Customer’s payment and other obligations shall continue to apply during any period of suspension pursuant to this Agreement.
8. Payment and Related Provisions
8.1 The Fees for the Hosted Service, Software Application licences and SDK licences shall initially be as set out on the Order Form.
8.2 The Fees for Hosted Service will be invoiced monthly.
8.3 The Fees for Software Application licences and SDK licences shall be invoiced on acceptance of the order of the licence or extension of the licence.
8.4 The Fees for any Consultancy Services purchased will be as set out in the relevant Statement of Work. If such Fees are not set out in the relevant Statement of Work, they will be charged on a time and materials basis at the Supplier’s then-current rates. Consultancy Service Fees will be invoiced monthly in arrears unless otherwise agreed.
8.5 The Fees for any Mapping Products purchased by the Customer from time to time will be as specified in the Hosted Service or otherwise at the Supplier’s then-current list price, and will be invoiced when ordered by the Customer.
8.6 The Fees for any other Services provided will be as agreed in writing between the parties, in the absence of agreement such Services will be charged for at the Supplier’s then-current list price, and shall be invoiced monthly in arrears.
8.7 The Customer shall pay invoices within 30 days of the date of the invoice.
8.8 The Supplier may change the Fees for the Hosted Service, Software Application licences and/or SDK licences from time to time by informing the Customer (including via a message in the Hosted Service) 30 days in advance of the change. However (unless agreed by the parties) any such change in Fees for the Hosted Service, Software Application licences and SDK licences will come into effect on the start of the next Renewal Term.
8.9 The Customer shall reimburse the Supplier for all pre-agreed expenses incurred in connection with the performance of any Consultancy Services or other support services.
8.10 The Fees are stated exclusive of all taxes, duties and levies, including sales taxes, value added taxes and withholding taxes.
8.11 If a payment due from the Customer under this Agreement is subject to any tax, duty or levy (whether by way of direct assessment or withholding at its source), The Supplier shall be entitled to receive from the Customer such amounts as will ensure that the net receipt, after tax, duty or levy, to the Supplier in respect of the payment is the same as it would have been were the payment not subject to any tax, duty or levy.
8.12 Overdue sums under this Agreement shall be subject to interest at 0.5% per calendar month, accruing and compounded monthly.
9. Data Protection
9.1 The Supplier will comply with applicable data protection laws in connection with username and email details provided using the Hosted Service.
9.2 The Customer shall not, and shall procure that its Permitted Third Party Users and other users of the Hosted Service shall not, upload any personal data (as defined in the Data Protection Act 1998) to the Hosted Service, and shall indemnify the Supplier against any claims, costs and losses arising as result of its breach of this Clause 9.2.
10. Intellectual Property Rights
Mapping Products
10.1 Subject to the Customer’s compliance with the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a perpetual, revocable, worldwide, non-exclusive, royalty-free, non-transferable right in respect of each Mapping Product purchased by the Customer as follows:
10.1.1 to make physical and/or electronic copies of such Mapping Product solely for use in relation to its own internal operations;
10.1.2 to make physical copies of such Mapping Product and include them within or on any Physical Materials, provided always that such Physical Materials may only be displayed and/or made available to Permitted Third Party Users at the Site and solely for purposes of Permitted Third Party User wayfinding;
10.1.3 to make electronic copies of such Mapping Product available for viewing only by Permitted Third Party Users:
(a) on Customer operated displays at the Site;
(b) on the web, through a Supplier approved URL only; or
(c) by means of a dedicated software application, where this has been approved in advance by the Supplier in writing and on such terms as the Supplier may require from time to time.
10.2 The licence in Clause 10.1 is subject to the restrictions set out in Clause 10.18.
Software Applications
10.3 The Supplier and its licensors shall retain all Intellectual Property Rights in any Software Application.
10.4 If the Supplier agrees to license the Customer any Software Application, in consideration for payment of the relevant Fees and subject to the Customer’s compliance with the terms and conditions of this Agreement, the Supplier grants the Supplier a worldwide, non-exclusive, non-transferable right to use the Software Application, for the shorter of the term agreed by the Parties or the Term of this Agreement. This licence is subject to the restrictions set out in Clause 10.18, and the additional provisions of any other relevant software licence agreed between the parties.
10.5 The licence in Clause 10.4 above may be sub-licensed to Permitted Third Party Users only, for the sole purpose of navigating the Site, and may not be sub-licensed to any other person or for any other purpose.
Software Development Kit Licence
10.6 The Supplier and its licensors shall retain all Intellectual Property Rights in any SDK.
10.7 If the Supplier agrees to license any SDK to the Customer, in consideration for payment of the relevant Fees and subject to the Customer’s compliance with the terms and conditions of this Agreement, the Supplier grants the Supplier a worldwide, non-exclusive, non-transferable right to use the SDK and to sub-license its service providers to use the SDK for the purpose of developing applications to distribute to Permitted Third Party Users to the Site only, for the shorter of the term agreed by the parties or the Term of this Agreement. This licence is subject to the restrictions set out in Clause 10.18, and the additional provisions of any other relevant licence agreed between the parties.
10.8 The Customer may not distribute any application containing an SDK, or make any material update to any application containing an SDK, without the written approval of the Supplier.
10.9 The Customer agrees that the SDK or any component of it may only be distributed as part of a completed, approved, application, and may not be distributed in any other form, including the form provided by the Supplier.
Background IPR
10.10 Each party and their licensors shall retain all right, title and interest in and to its Background IPR.
10.11 The Customer hereby grants to the Supplier a perpetual, worldwide, fully paid-up, non-exclusive, royalty-free, irrevocable, transferable and sub-licensable right to use, copy, modify, reverse-engineer and (notwithstanding Clause 17) distribute any Customer Background Materials that the Supplier has been provided (or provided access to) in connection with this Agreement, provided always that the Supplier shall not disclose, distribute, publish or make available any Non-public Information, for the purposes set out in Clause 10.12.
10.12 The purposes referred to in Clause 10.11 in respect of the Customer Background Materials (excluding any Non-public Information) are providing the Services, analysis of any services, improvement of any services provided to the Supplier’s customers in general, provision of mapping services, development, distribution and commercialisation of maps and mapping information and any other lawful purpose.
10.13 The Customer hereby grants to the Supplier a worldwide, fully paid-up, non-exclusive, royalty-free, transferable and sub-licensable right to use the Non-public Information as required to provide the Services under this Agreement.
Mapping Databases and Mapping Data
10.14 The Supplier and its licensors shall own all existing and future Intellectual Property Rights in any Mapping Databases and Mapping Data (excluding any Customer Background IPR which shall remain the property of the Customer and its licensors).
10.15 Except to the extent use is permitted by Clause 10.1, the Customer is granted no licence to any Mapping Databases or Mapping Data, and the Supplier reserves all of its and its licensors’ Intellectual Property Rights and other rights in and in respect of the Mapping Data and Mapping Databases.
Restrictions
10.16 The Mapping Products and any Software are licensed to the Customer as set out in this Agreement, and not assigned.
10.17 Neither party licenses nor assigns any Intellectual Property Rights in connection with this Agreement other than as expressly set out herein.
10.18 The Customer may not,
(a) sell, resell, lease or rent, in whole or in part, the Hosted Service, Software or Mapping Products;
(b) decipher, decompile, disassemble, reverse assemble, modify, translate or reverse engineer the Software or Mapping Products or otherwise attempt to derive or extract source code, algorithms, tags, specifications, architectures, structures, data or other elements of the Mapping Databases, Mapping Data, Mapping Products, Software and/or the Supplier’s Confidential Information, methods or methodologies, in whole or in part, for any purpose whatsoever;
(c) access or use the Hosted Service, the Software or the Mapping Products in any way which is intended to or does separate or extract any Mapping Data;
(d) access or use the Hosted Service, the Software or the Mapping Products for the benefit of any third party other than Permitted Third Party Users;
(e) combine or link the Software or Mapping Products directly or indirectly with any other maps, or package them in or distribute them with any service or product containing other maps;
(f) seek or attempt to do or permit or purport to permit any other party to do any of the above.
10.19 The Customer and all Permitted Third Party Users will immediately cease use of the Software and Hosted Service on termination of this Agreement.
10.20 In relation to future copyright, licences under this Agreement shall take effect as present licences of future rights.
11. Open Source Software
11.1 The Customer acknowledges that certain “free”, “open source” and/or third party software (“FOSS Software”) may be distributed, embedded or bundled with the Software or accessed via the Hosted Service. A list of the FOSS Software is set forth on the webpage located at www.livingmap.com. Use of such FOSS Software is subject to the terms of the licenses set forth on this webpage from time to time, provided that the Supplier shall not introduce any new terms which materially negatively affect the Customer’s use of the Software or Services.
12. Indemnities
12.1 The Supplier shall indemnify, keep indemnified and hold harmless the Customer from and against all losses together with all reasonable legal expenses suffered or incurred by the Customer as a result of a claim that the use of the Hosted Services or Software in the manner permitted by this Agreement infringes the Intellectual Property Rights of any third party, provided that the Customer shall:
(a) as soon as reasonably practicable give written notice of the matter to the Supplier, specifying in reasonable detail the nature of the relevant matter and shall use its reasonable endeavours to avoid and mitigate the losses it incurs;
(b) not make any admission of liability, agreement or compromise in relation to the matter in respect of which it seeks to be indemnified without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed); and
(c) allow the Supplier to have the conduct of all proceedings relating to the indemnity (and cooperate with the Supplier in relation to all such proceedings) and the indemnifying party shall at its sole discretion decide what action if any to take in respect of such matter and shall not be obliged to bring or defend any such proceedings if it decides in its sole discretion not to do so.
12.2 The Supplier shall not be liable under the above indemnity to the extent that the relevant claim or losses arose as a result of:
(a) the negligent or unlawful act or omission or breach of this Agreement by the Customer or any member of the Customer Group or any of their any of its agents, officers, employees or directors;
(b) any materials or Intellectual Property Rights provided or licensed to the Supplier by the Customer or any member of the Customer Group;
(c) modifications made by any party other than the Supplier;
(d) Software that does not incorporate all of the updates provided to the Customer, to the extent that such update would have prevented the claim; or
(e) use of the Software beyond the scope of or not in compliance with the terms of the Agreement or Documentation.
12.3 If any Software becomes, or in the Supplier’s reasonable opinion is likely to become, the subject of a claim of a kind described in Clause 12.1, the Supplier shall, at its own expense and discretion and in addition to any obligation of the Supplier to indemnify the Customer:
(a) acting promptly, procure the right for the Customer to continue to use, reproduce and exploit the relevant Software in the manner contemplated by this Agreement on terms which are acceptable to the Customer;
(b) replace or modify the relevant item with a non-infringing substitute; or
(c) terminate this Agreement without further liability, and refund to the Customer any Fees paid in respect of any period after such termination.
12.4 The indemnity set out in Clause 12.1 is the Supplier’s sole liability and Customer’s sole remedy in respect of any claim that any Service or Software infringes the intellectual property rights of any third party.
12.5 The Customer shall indemnify, keep indemnified and hold harmless the Supplier from and against all losses together with all reasonable legal expenses suffered or incurred by the Supplier as a result of a claim that any material, data or information uploaded to the Hosted Service by the Customer or any person who accesses the Services using the Customer’s access credentials or systems (whether permitted to do so by the Customer or not) or otherwise provided to the Supplier by or on behalf of the Customer infringes the Intellectual Property Rights or other rights of any third party, the AUP or any applicable laws or regulations.
13. Liability
13.1 Neither party shall be liable to the other for:
(a) any indirect or consequential loss;
(b) any loss of goodwill, reputation, custom or opportunity;
(c) any loss of or corruption of data;
(d) any loss of profits, revenue or anticipated savings, or
(e) any account of profits,
in connection with this Agreement (or any breach or non-performance of it no matter how fundamental) and howsoever arising, whether in breach of contract, tort, restitution, under an indemnity or otherwise.
13.2 Each party’s total aggregate liability arising under or in connection with this Agreement (or any breach or non-performance of it no matter how fundamental) and howsoever arising, whether in breach of contract, tort, restitution, under an indemnity or otherwise shall be limited to the actual Fees paid during the 12 months before the relevant cause of action arose.
13.3 Notwithstanding any contrary provision in this Agreement, neither party limits or excludes its liability in respect of:
(a) any Fees payable to the Supplier or any obligation to repay overpayments of Fees;
(b) any death or personal injury caused by its negligence;
(c) any fraud (including fraudulent misrepresentation);
(d) any breach by either party of Clause 17 (Confidentiality);
(e) any indemnity in Clause 10.19 (Indemnities);
(f) any breach by the Customer of Clause 10 (Intellectual Property Rights) or infringement by the Customer of any Intellectual Property Rights in the Software or Services; or
(g) any other liability which cannot be excluded under applicable law.
14. Insurance
14.1 The Supplier shall, at its own expense, take out and maintain in force reasonable insurance against its liabilities under this Agreement.
15. Termination and Renewal
15.1 Either party may terminate this Agreement (including all Statements of Work) at any time on written notice, either immediately or following such notice period as it shall see fit:
(a) for breach, if the other party commits any material breach of this Agreement and fails to remedy such breach within a period of 30 days from the service on it of a notice specifying the material breach and requiring it to be remedied;
(b) if the other party undergoes an Insolvency Event; or
(c) in any other circumstances where this Agreement expressly grants the relevant party a right to terminate this Agreement.
15.2 The Supplier may terminate this Agreement for breach immediately on notice if the Customer materially breaches Clause 10 (Intellectual Property Rights) or infringes any Intellectual Property Right of the Supplier or its licensors.
15.3 The Customer may terminate a Statement of Work for convenience on 30 days’ notice, provided that it shall pay the Supplier for any Services actually performed up to the date of termination and compensate the Supplier for all actual out-of-pocket expenses and non-cancellable commitments incurred by the Supplier in the performance of the Services.
15.4 Subject to Clause 15.5, at the end of the Initial Term and each Renewal Term this Agreement shall automatically be extended for a Renewal Term.
15.5 Either party may terminate this Agreement by providing not less than 30 days’ notice to expire at the end of the Initial Term or then-current Renewal Term.
16. Consequences of Termination
16.1 All provisions of this Agreement which are intended to have effect following any expiry or termination of this Agreement shall survive expiry or termination of this Agreement to the extent permissible by law.
16.2 Termination or expiry of this Agreement will not affect the rights and obligations of the Parties accrued at the date of termination or expiry.
16.3 On termination the Customer shall return or destroy all Software and other materials (that it does not have a continuing licence to use) in which Supplier Background IPRs subsist in its possession or control, and both parties shall return or destroy any other Confidential Information belonging to the other in its possession or control (other than Confidential Information to which it has a continuing licence) and all copies of any of the foregoing in any medium.
16.4 Notwithstanding any other term of this Agreement, if this Agreement is terminated for the Customer’s breach of Clause 11 (Intellectual Property Rights) or infringement of any Intellectual Property Right of the Supplier or its licensors, all subsisting licences to the Customer under this agreement shall immediately be terminated.
17. Confidentiality
17.1 Subject to Clause 17.2, each party shall treat all Confidential Information as strictly confidential and shall not disclose Confidential Information to any person.
17.2 A party may disclose Confidential Information:
(a) if and to the extent required by law or order of the courts, or by any securities exchange or regulatory or governmental body to which such party is subject, wherever situated;
(b) on a necessary basis and under conditions of confidentiality to the professional advisers, auditors and bankers of such party;
(c) if such Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; or
(d) with the prior written approval of the other.
17.3 The restrictions contained in this Clause shall continue to apply after the termination or expiry of this Agreement (however arising) without limit in time.
18. Force Majeure
18.1 If either party is prevented or hindered from performing any of its obligations under this Agreement by reason of Force Majeure, that party (the “Claiming Party”) shall have no liability in respect of any delay in performance or any non-performance of any such obligation, save for any payment obligation which shall continue in full force and effect, and the time for performance shall be extended accordingly.
18.2 If either party is prevented from performing all of its obligations by reason of Force Majeure for a continuous period of more than 3 (three) months, the other party may terminate this Agreement forthwith on service of written notice upon the party so prevented.
19. Illegality/Severance
19.1 If any provision of this Agreement is declared by any competent court or body to be illegal, invalid or unenforceable under the law of any jurisdiction, or if any enactment is passed that renders any provision of this Agreement illegal, invalid or unenforceable under the law of any jurisdiction this shall not affect or impair the legality, validity or enforceability of the remaining provisions of this Agreement, nor the legality, validity or enforceability of such provision under the law of any other jurisdiction.
20. Notices
20.1 Any notice to be given under this Agreement must be in writing and may be given by fax, post or personal delivery to the address given on the Order Form (as may be updated by either party by notice).
20.2 Any notice to be given shall be deemed effective (a) when left at the address identified above (if delivered personally) or (b) two business days after posting by first class post addressed as required above (if given by post).
21. Third Party Rights
21.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
22. Counterparts
22.1 This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
23. Entire Agreement
23.1 This Agreement (including the Statements of Work) constitutes the entire agreement and understanding between the parties relating to the transactions contemplated by or in connection with this Agreement and the other matters referred to in this Agreement and supersedes any other agreement or understanding (written or oral) between the parties or any of them relating to the same.
23.2 Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, statement, warranty, undertaking or representation made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement (including the Statements of Work), in respect of which its sole remedy shall be for breach of contract.
24. Assignment
24.1 Except as expressly permitted in this Agreement, neither party may at any time, without the prior written consent of the other party (such consent not be unreasonably withheld or delayed), assign all or any part of its rights and/or obligations under this Agreement, provided that the Supplier may, without the Customer’s consent, assign all or any part of its rights and/or obligations under this Agreement to any other member of the Supplier Group or any purchaser of the Supplier ‘s business, and shall inform the Customer of any such assignment.
24.2 the Supplier shall remain liable for the performance of its obligations under this Agreement irrespective of any subcontracting. The Supplier may subcontract any of its obligations under this Agreement.
24.3 Each party may disclose on a confidential basis to a proposed assignee, investor or purchaser information in its possession relating to the provisions of this Agreement for the purposes of the proposed assignment, notwithstanding the provisions of Clause 17 (Confidentiality).
25. Governing Law and Jurisdiction
25.1 This Agreement and 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) are governed by and shall be construed in accordance with English law.
25.2 The parties submit to the exclusive jurisdiction of the English courts for all purposes relating to and in connection with this Agreement and any dispute or claim as referred to in Clause 25.1.
