The Professional Alternative Platform
Terms of Usage
1.1 You or Your: The party entering into this agreement with Us together with any Affiliated Companies (as specified in the Contract Term Sheet) to whom We will provide access to the Platform and/or the Services. Where the context so requires, You or Your includes Your Authorised Users. For the avoidance of doubt, any obligation on You includes an obligation on You to procure the same from any Affiliated Companies.
1.2 Us, We, or Our: The Professional Alternative Group Limited incorporated and registered in England and Wales with company number 12668261 and whose registered office is at Unit 35 Basepoint Business Centre, Aviation Business Park, Enterprise Close, Christchurch, East Dorset, England, BH23 6NX.
1.3 Access Link: the individual link sent by Us to each Authorised User by which they can access and use the Platform and the Services.
1.4 Affiliated Companies: any third party companies (as specified in the Contract Term Sheet) that We expressly agree will also receive access to the Platform and the Services under this agreement.
1.5 Authorised Users: where You are a professional services firm (including but not limited to both LLPs and partnerships), “Authorised Users” means those of Your members, partners, legal consultants (to the extent that such legal consultants require access to the Platform to provide services to You) and employees, that We have agreed with You is or are to benefit from the Platform and the Services. Where You are any other type of organisation, “Authorised Users” includes any person in the business unit or units that We have agreed with You is or are to benefit from the Platform and the Services.
1.6 Business Purposes: the internal running and advancement of Your own business (meaning legal, accountancy or property advisory services) excluding for the avoidance of doubt the provision of professional, consultancy or any other form of advisory services to Your clients.
1.7 Commencement Date: is the date on which both parties have signed the Contract Term Sheet, as set out in the Contract Term Sheet and as more particularly described in clause 11.4.
1.8 Confidential Information: information (in any medium and whether or not marked confidential) that is proprietary or confidential to either party, including but not limited to any information concerning the business, affairs, customers, clients or suppliers of the other party and, in the case of Us, the Platform, the Knowhow and the Subscription Fee.
1.9 Contract Term Sheet: means the document issued by Us to You that sets out the key commercial terms for the licensing of the Platform and provision of Services by Us to You under these terms. For the avoidance of doubt, the Contract Term Sheet forms part of the agreement between the parties together with these terms.
1.10 Controller: means a “controller” for the purposes of the DPA.
1.11 DPA: means the UK Data Protection Act 2018 and all other data protection legislation applicable to the parties from time to time.
1.12 Initial Subscription Period: the initial term of this agreement as set out in the Contract Term Sheet.
1.13 Knowhow: Knowhow provided by Us to You under the agreement as specified in the Contract Term Sheet.
1.14 Maximum Limit: the maximum number of Authorised Users that You are entitled to grant access to the Platform and/or the Services at any one time during the term of this agreement, being no more than 5% more than the Number of Authorised Users.
1.15 Number of Authorised Users: the number of Authorised Users You require to have access to the Platform and the Services as at the Commencement Date, as specified in the Contract Term Sheet.
1.16 Personal Data: means “personal data” (as defined in the DPA) that are Processed under this agreement.
1.17 Platform: The software provided by Us or by Our suppliers which enables You to use the Services, including the Knowhow, data and information, data schemes, data models, databases and the like.
1.18 Process: is as defined in the DPA. Processing shall be interpreted accordingly.
1.19 Processor: means a “processor” for the purposes of the DPA.
1.20 Renewal Period: the period described in clause 11.5.
1.21 Services: includes the provision of Knowhow and other services agreed between the parties in writing from time to time.
1.22 Subscription Fee: the subscription fee for the Platform to be provided under this agreement, as specified in the Contract Term Sheet or otherwise agreed in writing between the parties.
1.23 Subscription Fee Announcement Date: a date during the Initial Subscription Period (and, where applicable, each Renewal Period) on which We notify You of our proposed increase to Your Subscription Fee in the next Renewal Period.
1.24 Subscription Period: The term of this agreement, being the Initial Subscription Period together with any subsequent Renewal Periods.
1.25 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.
1.26 Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
2. LICENCE FOR USE OF PLATFORM
2.1 Subject to You paying the Subscription Fee in accordance with these terms, We hereby grant You on the terms and conditions of this agreement a non-exclusive, non-transferable licence, without the right to grant sublicences, to access and permit each of Your Authorised Users to access the Platform via an Access Link and to use the Platform and the Services solely for Your Business Purposes (and for the avoidance of doubt, nothing in this agreement grants to You any other rights whatsoever in or relating to the Software or source code of the Platform).
2.2 You shall not, and You shall procure that Your Authorised Users shall not, store, distribute or transmit any material via the Platform that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
2.3 You shall not and You shall procure that Your Authorised Users shall not:
- attempt to copy, duplicate, modify, disclose or distribute any portion of the Platform and/or the Services; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Platform and/or the Services, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
- attempt to obtain or assist others in obtaining, access to the Platform and/or the Services, other than as provided under this agreement; or
- access all or any part of the Platform and/or the Services in order to build a platform, product or service which competes with the Platform and/or the Services; or
- use the Platform to provide hosting services to third parties, without Our prior written consent; or
- transfer, temporarily or permanently, any rights or obligations under this agreement; or
- introduce or permit the introduction of, any Virus or Vulnerability onto the Platform and/or into Our network and information systems.
2.4 You shall:
- maintain a written, up to date list of current Authorised Users and provide such list to Us:
- on the Commencement Date;
- no less than forty five (45) days prior to the commencement of any Renewal Period; and
- within five (5) working days of Our written request;
- ensure that each Authorised User shall keep their Access Link private and confidential;
- ensure that each Authorised User does not allow any other Authorised User or person to access the Platform and/or the Services using their Access Link, unless such Access Link has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Platform and/or the Services;
- notify Us immediately if:
- You require more Authorised Users to have access to the Platform and the Services than the Maximum Limit; or
- there is any change to the format of Your email domain; or
- are party to any form of merger or acquisition which could affect the format of Your email domain and/or the number of Authorised Users You require to have access to the Platform and the Services;
- not allow more Authorised Users than the Maximum Limit to use the Platform and/or Services at any one time during the term of this agreement;
- permit Us or Our designated auditor to audit the Platform and/or the Services in order to establish the name and corresponding Access Link of each Authorised User, the number of Authorised Users with access to the Platform and the Services and Your data processing facilities to audit compliance with this agreement, and:
- if any audit referred to in clause 4.6 reveals that any Authorised User’s Access Link has been provided to any individual who is not an Authorised User, then without prejudice to Our other rights, We may suspend that Authorised User’s access to the Platform and the Services; and
- if any audit referred to in clause 4.6 reveals that You have underpaid the Subscription Fee to Us, then without prejudice to Our other rights, You shall pay to Us an amount equal to such underpayment within ten (10) working days of the date of the relevant audit.
2.5 We confirm that We have all the rights in relation to the Platform that are necessary to grant all the rights We purport to grant under the terms of this agreement.
3. LICENCE FOR USE OF KNOWHOW
3.1 Subject to You paying the Subscription Fee in accordance with these terms, We authorise You and Your Authorised Users to use the Knowhow, provided that You may only search, view, copy and print out material containing Knowhow for Your own Business Purposes.
4. OUR OBLIGATIONS
4.1 We will take reasonable steps to ensure that Platform and data files We supply to You as part of the Service are free of any Viruses.
4.2 We will use reasonable endeavours to ensure that any data provided by You is maintained securely and is properly backed-up. In the event of any loss or damage to such data which does not constitute Personal Data, Your sole and exclusive remedy shall be that We seek to restore the lost or damaged data from the latest back up of such data. We shall not be responsible for any loss, destruction, alteration or disclosure of data caused by any third party.
4.3 We will use reasonable endeavours to ensure that the Services are provided continuously and that access to Our Platform is not interrupted by any event within Our control. For the avoidance of doubt (and in accordance with clause 8.6) We shall have no liability to You under this agreement if We are prevented from providing the Services or providing You with access to the Platform where this is due to the default of Our sub-contractors, hosting providers and/or other third parties who provide support services in respect of the Platform and/or the Services. We will notify You in advance of planned downtime, which, if reasonably practicable, will be scheduled outside normal United Kingdom office hours. We shall not be responsible for any non-availability of the Platform caused by any event outside of Our control or for any loss or damage caused as a result.
4.4 Whilst We will use reasonable endeavours to respond to all queries which are raised by Authorised Users via the Platform and/or the Services, We undertake no absolute obligation to respond to the same.
4.5 If Our performance of any of Our obligations under this agreement is prevented or delayed by any act or omission by You or an Authorised User (Client Default) We shall:
- not be in breach of this agreement;
- not be responsible for any injury, loss, damage, cost or expense suffered by You if and to the extent that it is caused by such Client Default;
- be entitled to an extension of any affected time for performance of Our obligations; and
- be entitled to charge for any additional charges, expenses and costs arising from such prevention or delay and You shall compensate Us for the same.
5. YOUR OBLIGATIONS
- copy, print out or otherwise reproduce any Knowhow nor any material relating to part of the Services, except as permitted under this agreement or authorised by Us in writing;
- make any part of the Knowhow or of the Platform available to anyone, except as permitted under this agreement or authorised by Us in writing;
- subject to clause 5.4 below, alter any part of the Knowhow or Services;
- except where necessary in order to receive the benefit of the Platform and/or the Services, provide Us with any confidential information or personal data;
- in respect of any query raised by You with Us, provide any answer by Us to a query to any client or permit any client or other third party to be aware of or rely upon Our provision of such an answer; and
- assign, otherwise dispose of or purport to assign or otherwise dispose of Your rights under this agreement.
5.2 You will take all reasonable steps to ensure that nobody other than Authorised Users access the Knowhow or Platform using accounts created with Your Access Links and under no circumstances shall the Platform or Knowhow be made available to anyone providing operational or other consultancy services to clients or other third parties.
5.3 You acknowledge and agree that We and Our licensors own all intellectual property rights in the Platform, the Knowhow and the Services. Except as expressly stated in this agreement, this agreement does not grant You any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Platform, Knowhow, Services or any related documentation.
5.4 You are solely responsible for the appropriate use and adaption of Our Knowhow for Your own Business Purposes.
5.5 You recognise and accept that in Our Knowhow (including Our answers to queries) We are not providing legal, consultancy or accountancy advice and We will not be liable to You for any losses, costs, damages, expenses or any other liability You may incur as a result of relying on Our Knowhow. You recognise and accept that Our employees are not practising solicitors, barristers or accountants.
5.6 You must inform any individuals using the Platform on Your behalf that neither We nor Our employees are giving legal, consultancy or accountancy advice either as practising solicitors or barristers or otherwise.
5.7 You recognise and accept that We may give answers to the same or similar queries asked by any of Our subscribers and that any conflict which might arise between subscribers is waived.
5.8 You will defend, indemnify and hold Us harmless against claims, actions, proceedings, losses, damages, expenses and all costs arising out of or in connection with Your misuse of the Platform, Services or Knowhow and/or failure to comply with any of Your obligations in this agreement provided that:
5.9 You are given prompt notice of any such claim;
- We provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
- You are given sole authority to defend or settle the claim.
5.10 You will maintain adequate and appropriate professional indemnity insurance in relation to any professional services You provide and all other appropriate insurances in relation to the running of Your business.
5.11 You are responsible for configuring Your information technology, computer programmes, network, network connections, systems and platform in order to access the Platform and the Services. You should use Your own virus protection software.
5.12 By submitting any data (including but not limited to Personal Data) to Us or Our affiliates, service providers and agents, You undertake and acknowledge that:
- in respect of data that is not Personal Data, You own all right, title and interest in and to all of such data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such data; and
- in respect of data that is Personal Data, You have obtained all necessary consents, have in place all necessary lawful grounds and have provided all necessary privacy notices in order to legitimately transfer such Personal Data to Us and for Us to Process such Personal Data in accordance with the terms of this agreement.
5.13 You shall provide Us with:
- all necessary co-operation in relation to this agreement; and
- all necessary access to such information as may be required by Us;
in order to provide the Platform and the Services, including but not limited to data, security access information and configuration services;
- without affecting Your other obligations under this agreement, comply with all applicable laws and regulations with respect to Your activities under this agreement;
- carry out all Your other responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in Your provision of such assistance as agreed by the parties, We may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Authorised Users use the Platform and 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; and
- obtain and maintain all necessary licences, consents, and permissions necessary for Us, Our contractors and agents to perform their respective obligations under this agreement, including without limitation the Services.
6.1 We give You no warranty or assurance in respect of this agreement, except as set out in clause 4 We declare and You acknowledge that all implied warranties and conditions are excluded to the maximum extent permitted by law.
6.2 Our policy is to conduct Our business at all times in a professional manner and to best practice standards. We use Our reasonable endeavours to maintain Knowhow up to date and to develop Our Platform to meet subscribers’ needs. However, You acknowledge that:
- the Knowhow is not intended to constitute a definitive or complete statement of the position on any subject, nor is any part of it intended to constitute formal advice for any specific situation.
- We do not undertake any obligation to consider whether the information provided to or by Us for the purpose of Our Knowhow (including answering a query) is either sufficient or appropriate for any particular actual circumstances.
- the Knowhow includes archived information and resources, which may be incorrect or out of date.
- answers to queries may be prepared entirely from Our existing Knowhow.
6.3 We are a provider of practical Knowhow and resources. We do not accept any responsibility for action taken as a result of information provided by Us. You should take specific advice when dealing with specific situations. The Services are general and educational in nature, may not reflect all developments and may not apply to the specific facts and circumstances of individual situations. We are not a law firm, accounting practice or consultancy, do not represent or advise clients in any matter and are not bound by the professional responsibilities and duties of a legal practitioner. Nothing in the Services or in these terms nor any receipt or use of such Services, shall be construed or relied on as advertising or soliciting to provide any legal services, creating any solicitor-client relationship or providing any legal representation, advice or opinion whatsoever on Our behalf or Our editorial staff.
6.4 We give You no warranty or assurance that the Platform and Our means of delivering them are compatible with Your software or computer configuration.
6.5 We may change part or all of any Service at Our discretion.
7. SUBSCRIPTION FEE & PAYMENT
7.1 You shall pay the Subscription Fee to Us in accordance with this clause 7 and the Contract Term Sheet.
7.2 You shall on the Commencement Date provide to Us valid, up-to-date and complete approved purchase order information acceptable to Us and any other relevant valid, up-to-date and complete contact and billing details.
7.3 We shall invoice You:
- on the Commencement Date for the Subscription Fee payable in respect of the Initial Subscription Period; and
- subject to clause 5, prior to the commencement of any Renewal Period, for the Subscription Fee payable in respect of the next Renewal Period,
and You shall pay each invoice within thirty (30) days after the date of such invoice.
7.4 If We do not receive payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies We may have:
- We may, without liability to You, disable all Your Authorised Users’ Access Links and Your general right of access to all or part of the Platform and/or the Services and We shall be under no obligation to provide any or all of the Platform and/or the Services while the invoice(s) concerned remain unpaid; and
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.5 All amounts and fees stated or referred to in this agreement:
- shall be payable in pounds sterling;
- are, subject to clause 8, non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to Our invoice(s) at the appropriate rate.
7.6 We shall be entitled to increase the Subscription Fee:
- immediately, where you require more Authorised Users to have access to the Platform and the Services than the Maximum Limit; and
- at the start of each Renewal Period in accordance with clause 6,
and the Contract Term Sheet shall be deemed to have been amended accordingly.
8. LIMITS OF LIABILITY
8.1 This clause sets out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents, contributors, consultants and sub-contractors) to You in respect of:
- any breach of this agreement;
- any use made by You of the Services or the Platform or any part of them; and
- any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this agreement.
8.2 Except as expressly and specifically provided in this agreement:
- You assume sole responsibility for results obtained from the use of the Platform and the Services by You, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided by You in connection with the Services, or any actions taken by Us at Your direction; and
- all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
8.3 Nothing in this agreement excludes Our liability:
- for death or personal injury caused by Our negligence; or
- for fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.3:
- We shall not be liable for any loss or profits, loss of business, depletion of goodwill or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
- Our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the Subscription Fee paid for the Platform during the twelve (12) months preceding the date on which the claim arose.
8.5 Under this clause, “Our liability” includes that of any company in Our group and Our and their respective agents, employees, contributors and consultants and sub-contractors, “You” includes any other party claiming through You and “loss or damage” includes any losses, damages, costs or expenses whatsoever or however arising in connection with the Platform and/or the Services, whether under this agreement or other agreement or in consequence of any misrepresentation, misstatement or tortious act or omission, including but not limited to negligence.
8.6 We shall have no liability to You under this agreement if We are prevented from or delayed in performing Our obligations under the agreement or from carrying on business by acts, events, omissions or accidents beyond Our reasonable control, including without limitation default of sub-contractors, hosting providers and/or other third parties who provide support services in respect of the Platform and/or the Services, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, cyber-attack, pandemic, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant machinery, fire, flood or storm.
9. DATA PROTECTION
9.1 You may transfer Personal Data to Us for Us to Process in the course of providing any Services, the parties intend that You will be the Controller and We will be a Processor in relation to such Personal Data.
9.2 You warrant and represent that:
- You are entitled to transfer such Personal Data to Us to lawfully allow us to Process the Personal Data in accordance with this agreement; and
- You will Process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
9.3 We shall comply with Our obligations under the DPA and shall, in particular:
- Process the Personal Data only to the extent, and in such manner, as is necessary for the purpose of providing the Platform and the Services and in accordance with Your written instructions and this agreement;
- implement appropriate technical and organisational measures in accordance with the DPA to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the likelihood and severity of risk in relation to the rights and freedoms of the data subjects;
- not transfer the Personal Data outside of the European Economic Area without Your prior written consent (not to be unreasonably withheld or delayed);
- ensure that any employees or other persons authorised to process the Personal Data are subject to appropriate obligations of confidentiality;
- except for our hosting provider to whom You are deemed to have already consented to Us engaging to carry out Our Processing obligations under this agreement, not engage any third party to carry out Our Processing obligations under this agreement without obtaining Your prior written consent (not to be unreasonably withheld or delayed) and, where such consent is given, procuring by way of a written contract that such third party will, at all times during the engagement, be subject to data Processing obligations equivalent to those set out in this clause;
- notify You, as soon as reasonably practicable, about any request or complaint received from data subjects without responding to that request (unless authorised to do so by You) and assist You at Your cost, insofar as is reasonably possible, for the fulfilment of Your obligations in respect of such requests and complaints;
- upon Your reasonable request, at Your cost and taking into account the nature of the Processing and the information available to Us, assist You in ensuring compliance with Your obligations under the DPA with respect to:
- implementing appropriate technical and organisational measures in accordance with Article 32 of the GDPR;
- where relevant, notifying any Personal Data breach to the Information Commissioner’s Office (or any replacement body) and/or communicating such Personal Data breach to the data subject in accordance with Articles 33 and 34 of the GDPR; and
- where necessary, carrying out and/or reviewing and, if applicable, consulting with the Information Commissioner’s Office (or any replacement body) with respect to data protection impact assessments in accordance with Articles 35 and 36 of the GDPR;
- upon Your reasonable request and at Your cost, make available information reasonably necessary to demonstrate Our compliance with this clause 9;
- based on the information provided by You under clause 188.8.131.52, upon the expiry of the Initial Subscription Period and any subsequent Renewal Period, delete all Personal Data relating to any individuals who have ceased to be Authorised Users; and
- on termination or expiry of this agreement and within a reasonable period of time, destroy or return to You (as You direct) all Personal Data and delete all existing copies of such Personal Data.
10.1 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:
- is or becomes publicly known other than through any act or omission of the receiving party; or
- was in the other party’s lawful possession before the disclosure; or
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Subject to clause 5 and clause 10.6, each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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.
10.3 Each party shall use its best endeavours to ensure that the other’s Confidential Information to which it has access to is not disclosed or distributed in violation of the terms of this agreement.
10.4 Each party shall use its best endeavours to ensure that the other’s Confidential Information is not disclosed to any third party (except, in Our case, those third parties sub-contracted by Us to perform services related to data maintenance and back-up).
10.5 We shall not be required to keep confidential any information You provide to Us for the purpose of Our answering queries and may publish any answer in the same way as any other Knowhow and (for the avoidance of doubt) will not be obliged to comply with any request to restrict its availability.
10.6 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 clause6, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.7 Unless otherwise agreed we may include You in Our general lists of customers or other promotional materials, including but not limited to press releases and on our website.
10.8 This clause shall survive termination of this agreement, however arising.
11. BASIS OF CONTRACT & TERM
11.1 From time to time, You may request access to the Platform from Us in writing and provide Us with as much information as We reasonably request in order to prepare a draft Contract Term Sheet.
11.2 Following receipt of the information requested from You, We shall, as soon as reasonably practicable either:
- inform You that We decline to provide the Platform to You on the terms You have requested; or
- provide You with a draft Contract Term Sheet.
11.3 If We provide You with a draft Contract Term Sheet pursuant to clause 11.2.2, the parties shall discuss and agree that draft Contract Term Sheet.
11.4 Both parties shall sign the Contract Term Sheet once it is agreed, at which point and on which date an agreement shall come into existence between the parties, subject to these terms (Commencement Date).
11.5 The agreement shall, unless otherwise terminated as provided in clause 12 or otherwise under these terms, commence on the Commencement Date and shall continue for the Initial Subscription Period and, thereafter, this agreement shall be automatically renewed for successive periods of twelve (12) months (each a Renewal Period), unless:
- subject to clause 6, either party notifies the other party of termination, in writing, at least forty five (45) days before the end of the Initial Subscription Period or any Renewal Period, in which case the agreement shall terminate upon the expiry of the applicable Initial Subscription Period or Renewal Period; or
- otherwise terminated in accordance with these terms;
and the Initial Subscription Period together with any subsequent Renewal Periods shall constitute the Subscription Period.
11.6 We will use reasonable endeavours to give You reasonable notice of when the Subscription Fee Announcement Date will be. On the Subscription Fee Announcement Date, We will notify You of Our proposed increase to the Subscription Fee which will be payable by You in the subsequent Renewal Period and:
- where the Subscription Fee Announcement Date is more than forty five (45) days before the end of the Initial Subscription Period or the current Renewal Period (as applicable), You may reject such proposed increase to Your Subscription Fee by serving notice to terminate the agreement in accordance with clause 5.1; and
- where the Subscription Fee Announcement Date is less than forty five (45) days before the end of the Initial Subscription Period or the current Renewal Period (as applicable), You may reject such proposed increase to Your Subscription Fee by serving notice to terminate the agreement at any time before the expiry of half of the remainder of the Initial Subscription Period or Renewal Period (as applicable), in which case the agreement shall terminate upon the expiry of the applicable Initial Subscription Period or Renewal Period. By way of example, if the Subscription Fee Announcement Date is thirty (30) days before the end of the Initial Subscription Period or the current Renewal Period (as applicable), You will have fifteen (15) days to terminate the agreement in accordance with this clause 6.2.
12.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party is in material breach of any of its terms and if the breach is not remedied within the period of twenty (20) working days after written notice of it has been given to the party in breach;
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than twenty (20) days after being notified in writing to make such payment;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- 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;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- 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 fourteen (14) days;
- 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 1.3 to clause 12.1.10 (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
12.2 Without affecting any other right or remedy available to Us, We may terminate this agreement with immediate effect by giving You written notice:
- at Our convenience on [thirty (30)] days’ written notice; or
- if You undergo a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
12.3 Without affecting any other right or remedy available to Us, We may suspend Your and/or any or all of Your Authorised Users’ access to the Platform and the Services with immediate effect by giving You written notice.
12.4 On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate;
- subject to the exceptions in this sub-clause, You will take reasonable steps to delete the Platform and the Knowhow from Your electronic media, including Your intranet and electronic storage devices so that You no longer have an electronically functional copy of the Platform or any part of the Knowhow;
- We may destroy or otherwise dispose of any of any of Your data in Our possession; and
- termination shall not affect or prejudice the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination.
13. SECURITY PATCHING
13.1 You authorise Us for the duration of this agreement to apply security updates or other mitigations relating to a security issue where, in Our reasonable opinion, the risk to the performance and security of the Platform, Knowhow, data and content justifies such action.
13.2 You understand and accept that:
- the Platform software or computer systems, whether provided by Us or a third-party, cannot be guaranteed to be free of security vulnerabilities;
- security issues may present a risk to the performance and security of the Platform, Knowhow and content;
- for security vulnerabilities in third-party software:
- We are dependent on the provision of security updates by relevant third-party software vendors;
- We are not liable to You for any delay or failure by the third-party software vendor to provide such security updates or for any issues related to the efficacy or performance of the third-party security updates;
- for security issues in the Platform or third-party software:
- We or the third-party software vendor require You to have the latest version of the Platform or relevant software installed and operational to receive a security update for any given security vulnerability;
- if the latest version of the software or Platform cannot be installed due to reasons outside of Our direct control, We shall use reasonable endeavours to mitigate the security issue where practical to do so.
13.3 Where, in Our reasonable opinion, a security issue may be of sufficiently high risk to either party, You understand and accept that little or no time may be available for testing security updates or other mitigations prior to their deployment and We shall therefore not be liable to You for any issues resulting from Our actions under this clause 3.
14.1 The rights provided under this agreement are granted to You only and shall not without Our prior written consent be considered granted to any subsidiary or holding company. You may not, without Our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this agreement.
14.2 This agreement is not intended to benefit anyone other than the parties to it and, in particular, no term of this agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
14.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
14.4 If any provisions (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.
14.5 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.
14.6 This agreement, the Contract Term Sheet and any agreed written record identifying Authorised Users constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this agreement. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently made or not) of any person (whether party to this agreement or not) other than as expressly set out in this agreement. The only remedy available to it for breach of this agreement shall be for breach of contract under the terms of this agreement.
14.7 English law governs this agreement, and the parties submit to the exclusive jurisdiction of the courts of England & Wales.
14.8 Variation: No variation of the terms of this agreement (including but not limited to the Contract Term Sheet) shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.9 Waiver: No failure or delay by a party in exercising any right or remedy under this agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor prevent or restrict its 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.
14.10 No legal partnership: Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.11 Notices: All notices given under these terms shall be made via email, sent for the attention of the relevant person named below and to such email address as the relevant party may notify to the other party, and shall be delivered either personally, by courier, or by recorded delivery. A notice is deemed to have been received at the time of transmission, except for where the time of transmission is outside normal business hours, in which case such notice shall be deemed to have been received on the next working day. This clause does not apply to the service of any proceedings or other documents in any legal action or dispute resolution.