Terms and Conditions
4PointZero Services Ltd – Terms and Conditions
- 4PointZero Services Ltd (the "Supplier”) provides cloud-based software applications, which enables the delivery of third party software to businesses, to assist them in their in their day-to-day practices.
- The Supplier can offer advisory, implementation and training services in relation to the delivery of its accounting software application. For the avoidance of doubt, the software application does not constitute accountancy or tax advice.
- The Supplier will charge the Customer for the use of the third party software applications it chooses to access via the Supplier.
- The Customer wishes to use the Supplier's services in its business operations.
- The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this Agreement.
Operative Provisions:
1. INTERPRETATIONS
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
“Administrator”
an Authorised User who has control as granted by the Supplier to set up Authorised Users to use the Services and who is the sole point of contact for communications between the Supplier and Customer.
"Authorised Users"
those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.3.2.
“Business Hours"
9.00 am to 5.00 pm in England, every day.
"Change of Control"
shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
"Confidential Information"
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.
"Customer Data"
the data input by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
“Customer Support Services”
basic support services provided by the Supplier via telephone, email or a Live Chat function.
“Data Protection Legislation”
has the meaning given at clause 5.3.
"Effective Date"
the commencement date of the Services.
"Fees"
subject to clauses 3 and 9.8, the fees payable by the Customer to the Supplier for the Services, as specified within the Specification or otherwise as notified to the Customer by the Supplier and accepted by the Customer before the Effective Date.
“Privacy Policy”
the Supplier’s Privacy Policy as set out at www.4pointzero.co.uk as may be amended from time to time by the Supplier in its sole discretion.
“Privacy and Data Protection Requirements (PDPR)”
the Data Protection Act 1998 (the DPA), the Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) (as amended) and General Data Protection Regulation (GDPR) and all applicable laws and regulations relating to the processing of the personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other national data protection authority, and the equivalent of any of the foregoing in any relevant jurisdiction.
“Quarter”
consecutive 3 month periods beginning on 1 January .
"Services"
the online software application subscription services as defined in the Specification provided by the Supplier to the Customer under this Agreement.
“Specification”
description of the Services as provided at www.4pointzero.co.uk and as may be updated from time to time.
"Subscription Term"
has the meaning given in clause 14.1.
"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 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail but not fax.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2 USERS
2.1 The Supplier shall supply access to such Services to the Customer as are indicated on the Customer’s sign up to the Services in accordance with the Specification and in accordance with this Agreement.
2.2 Subject to the Customer paying the Fees and complying with the undertakings and restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services for the duration of this Agreement solely for the Customer's internal business operations.
2.3 In relation to the Authorised Users, the Customer undertakes that:
2.3.1 each Authorised User shall keep a secure password for their use of the Services, and each Authorised User shall keep his password confidential. Each Authorised User shall also be required to use a method of dual authentication either via an authenticator app or a code sent via text message to their mobile phone.
2.3.2 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;
2.3.3 it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense (save where any discrepancy is proven as a result of any act or omission by the Customer, including but not limited to those considered in clause 2.2.4, whereby such audit shall be at the Customer’s sole 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
2.3.4 if any of the audits referred to in clause 2.2.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.
2.4 The Customer shall not, and undertakes that its Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity;
2.4.3 depicts sexually explicit images;
2.4.4 promotes unlawful violence;
2.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.4.6 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.
2.5 The Customer shall not:
2.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
2.5.2 access all or any part of the Services in order to build a product or service which competes with the Services; or
2.5.3 use the Services to provide services to third parties; or
2.5.4 subject to clause 22.1, 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
2.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.6 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.
2.7 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.8 The Customer authorises the Supplier to have access to the Administrator’s account if necessary, to include access to password and username details, to assist the Customer in its management of the Services if necessary.
3. ADDITIONAL AUTHORISED USERS
3.1 The Customer may, from time to time during any Subscription Term, allow additional Authorised Users to access the Services if approved by an Administrator and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement and subject to the Supplier’s adjustment of the Fees.
3.2 If the Customer wants to grant access to the Services for additional Authorised Users, an Administrator will grant permission to any new device to allow access to use the Services and the Fees shall be adjusted accordingly.
4. SERVICES
4.1 The Supplier shall, during the Subscription Term, provide access to the Services to the Customer on and subject to the terms of this Agreement.
4.2 The Supplier shall endeavour to notify the Customer of any planned changes or upgrades relevant to the Services.
4.3 The Supplier will, as part of the Services, provide the Customer with the Supplier's Customer Support Services during Business Hours at the Supplier's then current rates. The Supplier may change its Customer Support Services at its sole and absolute discretion from time to time. The Supplier may provide and the Customer may purchase enhanced support services separately at the Supplier's then current rates.
4.4 The Customer acknowledges that use of the Services does not constitute accountancy or tax advice. For the avoidance of doubt, information or data provided via the Services are for information purposes only. The Supplier is not liable for any reliance on any information or data provided via the Services.
4.5 The Supplier is able to provide advisory, implementation and training services in relation to the Services at the Customer’s request. The Supplier will charge the Customer for these additional services at an hourly rate if between £80 and £250 plus VAT. The Supplier reserves the right to agree a fixed fee for providing these additional services to the Customer.
5. CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole liability and responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Supplier shall provide information to the Customer on the back-up policies of the third party suppliers it uses if the Customer requests this information from the Supplier. Notwithstanding the foregoing, the Customer is solely responsible for familiarising itself with the back-up policies of third party suppliers and making and maintaining its own back-ups of Customer Data. The Supplier shall have no liability whatsoever or howsoever arising from a Customer’s failure to do so or for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. For the purposes of this clause, “Data Protection Legislation” shall mean:
5.3.1 to the extent the UK GDPR applies, the law of the United Kingdom or a part of the United Kingdom which relates to the protection of personal data; or
5.3.2 to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data.
5.4 Subject always to clause 5.5, if and to the extent that the Supplier controls any personal data in providing the Services, the Supplier shall comply with its Privacy Policy.
5.5 The parties acknowledge that, to the extent that the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be the data processor for the purposes of the Data Processing Legislation. Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject. Should the determinations in this clause change, the parties shall use all reasonable endeavours to make any changes that are necessary to clause 5 and Schedule 1 to ensure the successful delivery of Services under this Agreement.
5.6 In the circumstances outlined at clause 5.5, without prejudice to the generality of clause 5.3, the Customer warrants, and shall procure that the Authorised Users warrant as required, that:
5.6.1 it is entitled to and has all necessary appropriate consents and notices in place to enable lawful transfer of the relevant personal data to the Supplier and/or lawful collection of the personal data by the Supplier (as applicable) for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;
5.6.2 relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation, including the Data Protection Legislation; and
5.6.3 Customer Data will never comprise any special categories of personal data and no such data will be transferred to the Supplier.
5.7 Without prejudice to the generality of clause 5.3, the Supplier shall, in relation to any personal data contained within the Customer Data that is processed in connection with the performance by the Supplier of its obligations under this Agreement:
5.7.1 process the personal data only in accordance with the terms of this Agreement and any lawful written instructions reasonably given by the Customer (which shall be to process the Customer Data set out in Schedule 1) unless the Supplier is otherwise required to process personal data by the laws of the United Kingdom or European Union (“Applicable Laws”). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
5.7.2 each party shall implement technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss, destruction of, or damage to, personal data, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
5.7.3 ensure that any personnel engaged and authorised by the Supplier to process personal data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
5.7.4 assist the Customer, insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.7.5 notify the Customer without undue delay on becoming aware of a personal data breach insofar as and to the extent that such breach concerns Customer Data or otherwise affects the Customer;
5.7.6 delete or return personal data and copies thereof to the Customer on termination of the Agreement in accordance with the process set out at clause 14.3.3; and
5.7.7 maintain records to demonstrate its compliance with this clause 5 and allow for reasonable audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.
5.8 The Customer hereby provides its prior, general authorisation for the Supplier to:
5.8.1 appoint processors to process the Customer Data (in addition to those listed in Schedule 1, which list the Customer has reviewed and to the use of such processors the Customer hereby confirms its agreement), provided that the Supplier:
- shall ensure that the terms on which it appoints such processors comply with the Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in this clause 5;
- shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
- shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes, provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of the Data Protection Legislation, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection. In the event that the Customer raises an objection under this clause, the parties may agree to suspend the processing of the Customer Data until an agreement can be reached between the Supplier and the Customer in respect of the intended changes. If the parties are unable to reach an agreement, either party may terminate this Agreement on not less than three (3) months’ written notice to the other party.
5.8.2 transfer or store the Customer Data outside the UK or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this Agreement, provided that the Supplier shall ensure that all such transfers are effected in accordance with the Data Protection Legislation.
5.9 Either party may, at any time on not less than 30 days' notice, notify the other party of a need to revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement) subject to clause 17 (variation).
5.10 In the course of providing the Services, the Supplier may derive aggregated data based on the Customer Data (but not including any personal data forming part of the Customer Data). The Customer consents to this use and acknowledges that the Supplier will own all such aggregated data and that the Supplier may use such data as it considers appropriate, at its discretion, including for research and product development purposes.
5.11 The Supplier's liability for losses arising from breaches of this clause 5 shall be subject to the exclusions and limitations set out in clause 13 (Limitation of liability).
5.12 The Supplier shall have no liability (subject to clause 13) for any loss or damage caused by or arising from:
5.12.1 processing Customer Data in accordance with the Customer’s instructions, or for any consequences in the event that such processing otherwise infringes Data Protection Legislation; or
5.12.2 the Supplier refusing to comply with the Customer’s instructions in respect of processing Customer Data due to concerns that compliance will cause a breach of Data Protection Legislation.
6. THIRD PARTY PROVIDERS
6.1 The Customer acknowledges that third parties provide information as part of the Services and that the Supplier has no control over such content.
6.2 The Supplier cannot and does not warrant that any third party information which has been provided as part of the Services is accurate and/or complete and/or fit for purpose.
6.3 The Customer acknowledges that the Services may enable or assist it to access the content of, correspond with, and purchase products and services from, third parties via third-party websites (which may be accessed through the Services or framed on the same) and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website and/or content, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
6.4 The Customer acknowledges that third party content, which may be linked to and/or framed in and/or otherwise presented as part of the Services is provided in accordance with the relevant third party terms and conditions and the customer further warrants that they will comply with such relevant third party terms.
6.5 The Customer acknowledges that third party content may be unavailable during maintenance or upgrades to the Software or otherwise at the relevant third parties discretion.
7. SUPPLIER'S OBLIGATIONS
7.1 The Supplier shall use reasonable endeavours to provide the Services will be performed with reasonable skill and care.
7.2 For the avoidance of doubt, the Supplier does not undertake that the Services constitute accountancy or tax advice.
7.3 Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of in clause 7.1. Notwithstanding the foregoing, the Supplier:
7.3.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services or the information obtained by the Customer through the Services will meet the Customer's requirements; and
7.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 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.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 provide the Supplier with:
- all necessary co-operation in relation to this Agreement; and
- all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 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;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents, or any third party provider of the Services, to perform their obligations under this Agreement, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to any relevant 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.
9. CHARGES AND PAYMENT
9.1 The Customer will be required to provide its payment card details when it signs up to use the Supplier’s Services.
9.2 The Customer shall pay the Fees for the Services and any relevant charges for Customer Services Support and/or additional services on a monthly basis.
9.3 The Supplier will invoice the Customer every month for the Fees and any additional charges.
9.4 The Supplier may use the services of a third party to collect payment for the Fees from the Customer. Where the Supplier uses a third party, the Customer agrees to be bound by the terms of that third party. Except where notified otherwise by the Supplier the third party will be GoCardless Ltd.
9.5 The Customer shall pay each invoice raised by the Supplier within 30 days of the date of the relevant invoice issued by the Supplier to the Customer.
9.6 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
9.6.1 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, or grant access to, any or all of the Services while the invoice(s) concerned remain unpaid; and
9.6.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of The Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.7 All amounts and fees stated or referred to in this Agreement:
9.7.1 are, subject to clause 13.3.2, non-cancellable and non-refundable; and
9.7.2 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
9.8 The Supplier shall be entitled to increase the Fees upon 90 days' prior notice to the Customer.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11. CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that, where it can be evidenced in writing:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party's lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
11.7 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.8 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 or by the Supplier in marketing materials by reference to the Customer’s work with the Supplier.
11.9 The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
12. INDEMNITY
12.1 The Customer shall defend, indemnify and hold harmless the Supplier and any third party provider of the Services 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 (or any part thereof)
12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services (or any part thereof) infringes any GB 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:
12.2.1 the Supplier is given prompt notice of any such claim;
12.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
12.2.3 the Supplier is given sole authority to defend or settle the claim.
12.3 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.
12.4 In no event shall the Supplier or any third party provider of the Services (together in each case with their respective employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1 a modification of the Services (or any part thereof) by anyone other than the Supplier; or
12.4.2 the Customer's use of the Services (or any part thereof) in a manner contrary to the instructions given to the Customer by the Supplier or any third party provider of the Services; or
12.4.3 The Customer's use of the Services (or any part thereof) after notice of the alleged or actual infringement from the Supplier, any third party provider of the Services, or any appropriate authority.
12.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's and any third party provider of the Services (including in each case their respective employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in this Agreement:
13.1.1 the Customer assumes sole responsibility for the Customer Data uploaded via the Services and any results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
13.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
13.1.3 the Services are provided to the Customer on an "as is" basis and does not constitute accountancy and/or tax advice.
13.2 Nothing in this Agreement excludes the liability of the Supplier:
13.3.1 for death or personal injury caused by the Supplier's negligence; or
13.3.2 for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
13.3.1 the Supplier shall not be liable whether in tort (including for breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, wasted expenditure, 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
13.3.2 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, howsoever arising in connection with the performance or contemplated performance of this Agreement shall be limited to the value of the Fees incurred by the Customer in accordance with this Agreement in the 12 months immediately preceding the date on which the claim arose.
14. TERM AND TERMINATION
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue in perpetuity unless terminated in accordance with the provisions of this Agreement (“Subscription Term”).
14.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving two month’s written notice to the other party if:
14.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment;
14.2.2 the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
14.2.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
14.2.4 the other party suspends 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;
14.2.5 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;
14.2.6 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;
14.2.7 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;
14.2.8 the holder of a qualifying floating charge over the assets of that other party has appointed an administrative receiver;
14.2.9 a receiver is appointed over the assets of the other party;
14.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
14.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.4 to clause 14.2.10 (inclusive); or
14.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3 On termination of this Agreement for any reason:
14.3.1 all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
14.3.2 each party shall return and make no further use of any equipment, property and any other items (and all copies of them) belonging to the other party;
14.3.3 the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession 7 years after the date of entry of the Customer Data by the Customer. The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data or complying with any request for Customer Data;
14.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
14.3.5 the Supplier is entitled to invoice the Customer for any Fees that will be payable to third party suppliers the Supplier uses to provide the Services.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16. CONFLICT
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
17. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. 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.
20. SEVERANCE
20.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21. ENTIRE AGREEMENT
21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 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.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22. ASSIGNMENT
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 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.
23. 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).
24. 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.
25. NOTICES
25.1 A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party.
25.2 The following table sets out methods by which a notice may be sent and its corresponding deemed delivery date and time:
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 construed in accordance with the law of England and Wales.
27. JURIDSTICTION
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).
SCHEDULE 1
Data Processing relating to Customer Data
1. Scope of processing
The Supplier processes personal data comprised within Customer Data for the purposes of providing the Services set out in this agreement.
2. Nature of processing
The Supplier provides software applications and platforms for the purpose of enabling the Customer to provide accounting information and services to its end clients. Providing the Services requires that the Supplier collects, imports, exports, stores, displays, migrates and shares Customer Data (including personal data) relating to Customer employees and Customer clients (each being an Authorised User) to set up individuals on relevant software applications and facilitate payment for reimbursable expenses.
3. Duration of processing
The Supplier will process personal data comprised within Customer Data for the duration of this agreement or as may otherwise be required by Applicable Laws.
4. Types of personal data
Customer’s employees:
Individual’s name
Individual’s e-mail address
Individual’s bank details
Individual’s transaction data (including IP address and login data)
Customer’s clients:
Individual’s name
Individual’s e-mail address
5. Categories of data subject
Customer employees
Customer clients
6. Sub-processors
As at the date of this agreement, the Supplier uses the following sub-processors located in the jurisdictions stated:
Salesforce – Global (with data stored in London, UK)
AWS – Global (with data stored in London, UK)
Google Analytics – Global (with data stored globally)