Please read these Terms and Conditions, carefully before registering for a subscription to use the Services offered on this website operated by Multiply Software Limited, with registered number 10574089 and with its registered address at 66 Prescot Street, London E1 8NN, England.
By registering for a free trial, or completing the online registration form for a chargeable subscription to use the Services provided at www.multiply.cloud and clicking on the accept buttons relating to these Terms and Conditions, the SLA, the DPA and the Privacy Policy, you the Customer agree to be legally bound by these Terms and Conditions, the SLA, the DPA and the Privacy Policy as they may be modified and posted on our website from time to time. You can access all relevant legal documents at https://multiply.cloud/en/legal-resources/.
If you do not wish to be bound by these Terms and Conditions, the SLA, the DPA and the Privacy Policy then you may not register to use a free trial or purchase a subscription to access or use our Services.
Please note:
Any non-English language versions of documents provided via links on the Company’s website or otherwise, are provided purely for assistance purposes and must not be relied upon. Only the English language versions of any documents will be included in the terms of this Agreement and form part of the legal binding agreement between the Customer and the Company. No documents, policies or terms not in the English language will form part of the legally binding agreement between the parties.
1. Definitions
In this Agreement, the following words shall have the following meanings:
“Agreement” means these Terms and Conditions together with the Order Form, the SLA, the DPA, the Privacy Policy and any SOW referenced in an Order Form;
“Authorised Users” means employees, agents, consultants, clients, customers or independent contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Services;
“Business Day” means 8.00am to 4.00pm Monday to Friday, UK local time (excluding any national holidays in the UK);
“Company” means Multiply Software Limited, 66 Prescot Street, London E18NN, England;
“Confidential Information” means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
“Consultancy Fees” means any consultancy fees set out in the Order Form, a SOW, or an invoice for the Consultancy Services;
“Consultancy Services” means any consultancy services included in an Order Form or SOW;
“Customer Data” means all data imported into the Services or made available for the purpose of using the Services or facilitating the Customer’s or an Authorised User’s use of the Services;
“Customer” means the company or entity named in each Order Form;
“DPA” means the data processing agreement of the Company published at https://multiply.cloud/en/legal-resources/, as amended from time to time;
“Effective Date” means the start date of this Agreement set out under the effective date in the Order Form;
“Feedback” means feedback, innovations or suggestions created by the Customer or Authorised Users regarding the attributes, performance or features of the Services;
“Fees” means all fees payable under this Agreement for the Services as set out an Order Form, a SOW or an invoice;
“Force Majeure” means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
“Initial Term” means a fixed period of 1 month (unless stated otherwise in an Order Form);
“Intellectual Property Rights” means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Order Form” means the Company’s order form completed online by the Customer, or signed by the parties where a SOW is included;
“Privacy Policy” means the privacy policy of the Company published at https://multiply.cloud/en/legal-resources/ as amended from time to time;
“Renewal Term” means the renewal term set out in the Order Form;
“Services” means the software applications of the Company provided under a Trial Period, or for a chargeable subscription as set out in the Order Form and /or SOW which are made available to the Customer and its Authorised Users including any computer software programmes and Updates thereto;
“SLA” means the service level agreement of the Company published at https://multiply.cloud/en/legal-resources/ , as amended from time to time;
“SOW” means any statement of work signed by the parties and referred to in an Order Form;
“Statistical Data” means aggregated, anonymised data derived from use of the Services and Customer Data which is processed when the Customer or an Authorised User’s uses of the Services. Such statistical data created does not contain any Confidential Information of the Customer;
“Subscription Fee” means the subscription fee set out in the Order Form, a SOW or an invoice, payable by the Customer to the Company for access to the Services during the Term;
“Term” means any Trial Period, plus the Initial Term and any Renewal Term(s) together;
“Terms and Conditions” means these terms and conditions;
“Third-Party Application” means any software, Internet-connected service, website, e- commerce platform, marketplace, price comparison website, cloud-based service, API (Application Programming Interface) that is not included in the Services;
“Trial Period” means any free trial period included in the Order Form;
“Updates” means any new or updated applications services or tools (including any computer software programmes) made available by the Company as part of the Services during the Term.
2. Provision of the Services
2.1 The Customer engages the Company and the Company agrees to provide the Services to the Customer from the Effective Date for the Term in accordance with the terms of this Agreement.
2.2 The Customer and its Authorised Users shall use the Services in accordance with the terms of this Agreement.
3. Licence
3.1 The Customer is granted a non-exclusive, non-transferable, worldwide, revocable licence to permit the Customer and Authorised Users to use the Services (including any associated software, Intellectual Property Rights and Confidential Information of the Company and its licensors) during the Term. Such licence shall permit the Customer to make cache copies of software or other information as are required for the Customer to access the Services via the Internet. Where open source software is used as part of the Services, such software use will be subject to the terms of the open source licences.
3.2 No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services with which interoperability is sought and the nature of the information needed), the Company will provide access to relevant source code or information. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 Except as specifically stated in this Agreement, the Customer may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) permit access to or use of the Services by or on behalf of any third party.
3.5 The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
3.6 The Company may suspend access to the Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion: (i) the Customer or an Authorised User breaches the terms of this Agreement; or (ii) the integrity or security of the Services is in danger of being compromised by acts of the Customer or Authorised Users. Where possible in light of the breach, the Company shall give 24 hours prior notice by email, before suspending access to the Services.
4. Intellectual Property Rights
4.1 All Intellectual Property Rights and title to the Services (save to the extent they incorporate any Customer Data or Customer or third party owned item or service) shall remain with the Company and/or its licensors and subcontractors. No interest or ownership in the Services, the Company’s Intellectual Property Rights or otherwise is transferred to the Customer under this Agreement.
4.2 The Customer is not allowed to remove any proprietary marks or copyright notices from the Services.
4.3 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data
and the Customer’s pre-existing Intellectual Property Rights. The Customer shall have sole
responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
4.4 The Customer grants the Company a non-exclusive, non-transferable, worldwide licence to use: (i) Customer Data; (ii) Customer’s Intellectual Property Rights including the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time); and (iii) any third party owned item; fromthe Effective Date for the Term to the extent required for the Company to provide the Services set out in the Agreement to the Customer.
4.5 The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
4.6 The Customer grants the Company the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting the Company from using the Statistical Data for business and/or operating purposes, provided that the Company does not share with any third party Statistical Data which reveals the identity of the Customer or Customer’s Confidential Information.
4.7 The Company may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
5. Term
5.1 This Agreement shall begin on the Effective Date and continue for: (i) the Trial Period (where a Trial Period is included in the Order Form; or (ii) for the Initial Term, where no Trial Period is included in an Order Form.
5.2 On expiry of the Trial Period the Agreement shall continue for the Initial Term unless either party gives notice by email to the other prior to the expiry of the Trial Period that it wishes to terminate the Agreement.
5.3 On expiry of the Initial Term, the Agreement shall automatically renew for successive Renewal Terms until either party terminates the Agreement as set out in clause 14.
6. Fees
6.1. No Subscription Fees shall be charged for use of the Services during the Trial Period.
6.2. Where a Customer uses a free trial and terminates the Agreement prior to the start of the Initial Period, the Customer hereby authorises the Company to access the Customer’s sales channels to reset the Customer’s target prices to the Customer’s reference prices, within the Customer’s configured price bounds so that all reference prices are reset to the prices that existed on the Customer’s sales channels before the start of the Trial Period.
6.3. Upon expiry of the Trial Period, Subscription Fees shall be charged for continued use of the Services.
6.4. All Fees charged to the Customer for the services provided under this Agreement are set out in invoices sent to the Customer and are calculated based upon the Company’s price list published at https://multiply.cloud/en/pricing/ on the date each invoice is issued, unless stated otherwise in an Order Form or SOW.
6.5. Consultancy Fees are charged for all Consultancy Services provided.
6.6. Subscription Fees are charged for access to and use of the Services. Subscription Fees consist of fixed fees, and variable fees based upon usage as set out in each invoice.
6.7. Subscription Fees are based upon the variable parameters set out in the Order Form.
6.8. The Company is entitled to increase Fees during the Term upon giving the Customer 30 days prior written notice of any changes. Increases shall apply from the start of the next Renewal Term, unless the Customer terminates the Agreement prior to this date by giving notice in writing to the Company within such 30 day period.
6.9. Additionally, when the Company’s costs for providing the Services in relation to any particular sales channel change (for example, as a result of the sales channel owners restricting access to competitive pricing data), the Company may immediately suspend access to that particular sales channel and/or offer new pricing for continued use of that sales channel. In all such cases the Customer may reject the new pricing and/or opt to cease using the Services for this sales channel in relation to: (i) such price increase; or (ii) suspension of a sales channel that lasts more than 14 days which affects more than 50% of the Customer’s entire sales channels used within the Services in any 12 month period of the Term; by terminating the Agreement upon giving the Company written notice within the 14 day period. The Customer shall receive a pro rata refund of any Fees paid for Services not provided after the effective date of termination.
7. Invoicing and Payment
7.1. The Company shall issue invoices for all Fees as set out in the Order Form.
7.2. Payment can be made by direct debit (GBP), SEPA direct debit (EUR) and by bank transfer or any other method agreed between the parties in writing.
7.3. All invoices shall be paid in full and the Customer has no right to set-off any fees it disputes, or deduct any refunds it may be entitled to under the Agreement.
7.4. The Customer is liable for all fees, expenses and bank charges payable by either party in relation to payment of any invoices.
7.5. All Fees exclude any Value Added Tax legally payable on the date of the invoice, which shall be paid by the Customer in addition, where applicable.
7.6. The Customer shall pay all Fees to the Company within 14 days of the date of each invoice unless stated otherwise in the Order Form.
7.7. Where payment of any Fees is not received within 14 days of the due payment date, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services or access to the Services while the invoice(s) concerned remains unpaid. The Company shall be entitled to charge interest on overdue Fees at the applicable statutory rate and shall continue to charge the Customer for the Services despite the suspension. Where suspension lasts for 2 months or longer, the Company may terminate the Agreement upon giving notice in writing to the Customer.
7.8. The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
8. Third Party Applications
8.1. The Customer warrants and represents that they have all rights required to: (i) permit the Company to connect the Services to a Third-Party Application in order to provide the Services set out in this Agreement; (ii) enable the Customer to connect the Services to a Third-Party Application; and (iii) communicate with the Company via a Third-Party Application using for example a URL, username, password, API key, token or anything similar for the purpose of establishing a one-way or two-way communication between the Services and a Third-Party Application. The Customer hereby grants the Company all rights required by the Company to provide the Services via connection to Third-Party Applications.
8.2. The Company shall make all reasonable efforts to ensure that any interface or integration to a Third Party Application used by the Customer operates correctly. The Customer acknowledges that the successful operation of any interface or integration is dependent upon the technical set up of the Third Party Application, and the Customer agrees that the Company cannot be held liable for any failures in the operation of the interface or integration. Accordingly, the Company shall have no liability or obligation whatsoever to the Customer in relation to the content, or use of any data supplied by a Third Party Application, made available via use of the Services.
8.3. The Customer shall be responsible for promptly informing the Company of any issue that arises with the effective operation of a Company provided interface or integration with a Third Party Application. The Company shall upon being notified of the issue use all reasonable efforts to resolve the problem at the earliest opportunity.
8.4. The Customer acknowledges that: (i) it is responsible for ensuring that it has paid and instructed the third party providing the Third Party Application to co-operate with the Company; and (ii) the Company has no liability whatsoever to the Customer for any problems with any interface or integration resulting from acts or omissions of the Customer or the third party.
9. Provision of Consultancy Services
9.1. The Implementation Period shall be extended by the length of any delay in any configuration services provided if: (i) the Customer changes its requirements after the SOW has been agreed; or (ii) the Company’s ability to comply with the SOW is impaired by any act or omission of the Customer or breach of this Agreement, which shall include but not be limited to the Customer failing to provide timely support and resources or having a lack of bandwidth or other technical requirements; or (iii) the parties agree to extend the Implementation Period; or (iv) A Force Majeure event occurs.
9.2. During the Implementation Period the Customer shall test any configurations for defects and compliance with the SOW. Such tests shall include testing the material software programme features. Any defects that are discovered shall be notified to the Company.
9.3. The Customer shall provide the Company with all appropriate test data in accordance with the SOW.
9.4. The Company shall provide the Consultancy Services as set out in the SOW.
9.5. Any period agreed for providing Consultancy Services in the SOW shall be extended by the length of any delay if: (i) the Customer changes its requirements after the SOW has been agreed; or (ii) the Company’s ability to comply with the SOW is impaired by any act or omission of the Customer or breach of this Agreement, which shall include but not be limited to the Customer failing to provide timely support and resources or having a lack of bandwidth or other technical requirements; or (iii) the parties agree to extend the period; or (iv) A Force Majeure event occurs.
10. Disclaimers
10.1. The Customer specifically agrees that it has the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and all data created via any use of the Services, in particular any price indications created by the Services.
10.2. Excluding price recommendations, all other information created by the Services or used by the Customer, its Authorised Users or any third party are provided only for guidance purposes.
10.3. No information generated by the Services should be relied upon or used by the Customer, without the Customer making its own individual professional assessment of the information and the Company excludes all liability whatsoever for any reliance upon or use of such information by the Customer, its Authorised Users or a third party.
10.4. The Company excludes all liability whatsoever for the Customer being banned from their respective marketplaces.
10.5. Where safety guideline recommendations are provided to the Customer, the Customer and Authorised Users are obliged to review such safety guideline recommendations, after each update is provided by the Company. Such review does not relieve the Customer or Authorised Users from taking appropriate measures to follow the safety guideline recommendations.
10.6. The Customer specifically agrees and acknowledges the Company is not liable for and has no responsibility to the Customer or any Authorised Users in relation to all losses or claims resulting from or arising in connection with use of the Services where the Customer or an Authorised User: (i) fails to observe any safety guideline recommendations; (ii) does not exercise its own judgment prudently in following any safety guideline recommendations; (iii) disregards any safety guideline recommendations; (iv) instructs the Company, its employees, officers or agents to act in accordance with their own instructions in breach of the safety guideline recommendations.
10.7. If the Company follows the Customer’s or Authorised User’s instructions the Company has no obligation to verify the potential outcomes or provide advisory services on following such instructions.
10.8. All guidance or suggestions provided by the Company’s employees, officers or agents when providing the Services is based on the information available at the time and is intended to assist the Customer in using the Services effectively. The Company does not guarantee the results or outcomes of actions taken based on the guidance or suggestions provided. Any advice or recommendations provided is non-binding and the Customer and Authorised Users have ultimate responsibility on deciding whether or not to follow such advice. The Company shall not be held liable for any unfavourable outcomes or losses resulting from actions taken based on advice or recommendations provided by the Company. The Customer acts on such advice at its own sole risk.
11. Warranties
11.1. Each party warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; and (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
11.2. The Company warrants to the Customer that: (i) it has the right to license the Services; (ii) the Services shall be provided with reasonable skill and care and in a professional manner in accordance with good industry practice; (iii) the Services shall operate in accordance with the SLA to materially provide the facilities and functions provided by the Company; and (iv) the Services will not infringe the Intellectual Property Rights of any third party. The foregoing warranties shall not: (a) cover deficiencies or damages relating to any third party components not furnished by the Company; or (b) any third party provided connectivity necessary for the provision or use of the Services.
11.3. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
11.4. The Customer warrants and represents to the Company that: (i) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement; (ii) it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement. In particular the Customer and Authorised Users shall treat any identification, password or username or other security device for use of the Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing; and (iii) it shall ensure that its network and systems comply with the relevant specification provided by the Company from time to time. The Customer is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer’s systems to the Company’s data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
11.5. All third party content or information provided by the Company via the Services, is provided “as is”. The Company provides no warranties in relation to such content or information and shall have no liability whatsoever to the Customer for its use or reliance upon such content or information.
11.6. Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law.
12. Liability
12.1. Neither party excludes or limits its liability to the other for fraud, death or personal injuryvcaused by any negligent act or omission or wilful misconduct.
12.2. In no event shall either party be liable to the other whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘”Consequential Loss’” shall for the purposes of this section mean: (i) pure economic loss; (ii) losses incurred by any client of the Customer or other third party; (iii) loss of profits (whether categorised as direct or indirect loss); (iv) losses arising from business interruption; (v) loss of business revenue, goodwill or anticipated savings; and (vi) losses whether or not occurring in the normal course of business, wasted management or staff time.
12.3. The Company shall not be liable to the Customer and excludes all liability for any claim made by the Customer relating to or arising from: (i) prices being set through the Services to any amount within the bounds configured by the Customer; (ii) delays or oversights in ingesting the Customer’s most recent price bounds; (iii) undesirable outcomes resulting from the acts or omissions of a third party such as a marketplace or data provider; and no damages are payable for such claims under any circumstances, even when a price set through the Services is not optimal.
12.4. Subject to clauses 12.1 to 12.3 inclusive, the total liability of the Company to the Customer in aggregate (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall be limited to one hundred (100) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Company during the twelve (12) month period prior to the date on which such claim arose. If the duration of the Agreement has been less than twelve (12) months, such shorter period shall apply.
12.5. The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Authorised Users who access the Services as if such acts, omissions or negligence had been committed by the Customer itself.
12.6. The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
13. Indemnities
13.1. The Company, shall at its own expense: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defence and/or settlement; and the (c) Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
13.2. If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the affected part thereof; or (ii) replace the Services or affected part with other suitable non-infringing service(s); or (iii) modify the Services or affected part to make the same non-infringing.
13.3. The Company shall have no obligations under this clause 13 to the extent that a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would Services been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with the terms of this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
13.4. The Customer shall defend, indemnify and hold the Company and its employees, sub- contractors or agents harmless from and against any cost, losses, fines, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or breach by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by an Authorised User or a third party; and (iii) use by the Company of any Customer Data or Customer or Authorised User provided item; and (iv) breaches of data protection law or regulations or the terms of the DPA by the Customer; and (v) any breach of the terms of this Agreement by an Authorised User; and the Company shall be entitled to take reasonable measures to prevent the breach from continuing.
13.5. Subject to clauses 13.1 to 13.4 inclusive, each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party under and indemnity claim. Such indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
14. Termination
14.1. Neither party may terminate the Agreement without cause during the Initial Term.
14.2. On expiry of the Initial Term, either party may terminate the Agreement by giving written notice to the other: (i) on or before the last day of the current calendar month, where a Renewal Term is one month; or (ii) at least 24 hours before the date of the start of the next Renewal Term, where a Renewal Term is longer than 1 month.
14.3. During the Term, the Company may immediately terminate the Agreement or the provision of the Services pursuant to the Agreement if: (i) the Customer has used or permitted use of the Services other than in accordance with this Agreement; or (ii) the Company is prohibited, under applicable law or otherwise, from providing the Services.
14.4. Either party shall be entitled to terminate this Agreement on written notice if the other party: (i) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; (iii) is prevented by Force Majeure from fulfilling its obligations for more than twenty eight (28) days.
14.5. Upon termination of this Agreement: (i) the Company shall immediately cease providing the Services to the Customer and all licences granted hereunder shall terminate; (ii) the Customer shall promptly pay the Company all unpaid Fees for the remainder of the Initial Term or Renewal Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Initial Term or a Renewal Term; (iii) at the option of the Customer, following receipt of a request from the Customer delete (in accordance with the terms of the DPA) or return all Customer Data stored on the Company’s (or its hosting provider’s) servers in a machine readable format, free of charge, provided that such request is made within 30 days of termination. If the Customer requires any such Customer Data to be returned in a different format the Company reserves the right to charge for this additional service on time and materials basis.
14.6. Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
15. Confidential Information
15.1. Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
15.2. Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
15.3. Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
15.4. The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.
16. Data Protection
16.1. Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
16.2. To the extent that personal data is processed when the Customer or its Authorised Users, use the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.
16.3. If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
16.4. Where the Company collects and processes personal data of the Customer, as a data controller, when providing the Services to the Customer for example when the Customer provides an email address upon registration or when ordering the Services, such collection and processing shall be in accordance with the Privacy Policy.
17. Contacts
The Customer shall ensure that it keeps its contact information up date at all times to enable the Company to send relevant information and notices to the Customer under the Agreement.
18. No Third-Party Rights
Nothing contained in this Agreement is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
19. Force Majeure
19.1. If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, then that party’s obligation to perform in accordance with this Agreement will be suspended.
19.2. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. If the Force Majeure event last for more than 28 days the non-defaulting party may terminate this Agreement with immediate effect without penalty.
20. Miscellaneous
20.1. Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
20.2. This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
20.3. In the event of any inconsistency between the content of the Order Form, the Terms and Conditions, the SOW, the SLA, the DPA and the Privacy Policy, the provisions of the SOW shall prevail in relation to the Consultancy Services set out therein followed by the Order Form, the Terms and Conditions, the SLA, the DPA and then the Privacy Policy.
20.4. No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies; or (ii) any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event, who is not a competitor of the Customer.
20.5. The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
20.6. All notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent to: (i) the email address of each party usually used to correspond within the Services for invoicing purposes; or (ii) in the case of the Customer, if sent to the Customer via its admin contact in the platform.
20.7. The Company may change or modify the terms of this Agreement upon giving the Customer 30 days notice. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of the 30 day period or continues to use the Services after expiry of such 30 day period.
20.8. Failure to exercise, or any delay in exercising, any right or remedy under this Agreement, or at law or equity, shall not be a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
20.9. Neither party shall make any public statement, press release or other announcement relating to the terms or existence of this Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid the Company may use the Customer’s name and trademarks (logo only) to list the Customer as a client of the Company on its website and in other marketing materials and promotional information.
21. Dispute Resolution
21.1. The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and any breach of it.
21.2. If any such dispute cannot be settled amicably through ordinary negotiations of the sales directors of each party, the dispute shall be escalated in writing to the chief executive officer of the Company and the chief financial officer of the Customer who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within 14 days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with clause 22 below.
22. Governing Law and Jurisdiction
22.1. This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
