Subscription Terms | Book The Pub

Dated 10/11/21 202[*]

Book the Pub Ltd

Subscription Terms

Table Of Contents

INTERPRETATION…………………………………………………………………….
USER SUBSCRIPTIONS………………………………………………………………
ADDITIONAL USER SUBSCRIPTIONS……………………………………………….
SERVICES……………………………………………………………………………..
DATA PROTECTION…………………………………………………………………..
THIRD PARTY PROVIDERS……………………………………………………………
SUPPLIER’S OBLIGATIONS…………………………………………………………..
CUSTOMER’S OBLIGATIONS……………………………………………………….
CHARGES AND PAYMENT…………………………………………………………..
PROPRIETARY RIGHTS………………………………………………………………
CONFIDENTIALITY [AND COMPLIANCE WITH POLICIES]…………………………
INDEMNITY………………………………………………………………………….
LIMITATION OF LIABILITY………………………………………………………….
TERM AND TERMINATION…………………………………………………………..
FORCE MAJEURE…………………………………………………………………….
CONFLICT……………………………………………………………………………
VARIATION…………………………………………………………………………..
WAIVER………………………………………………………………………………
RIGHTS AND REMEDIES……………………………………………………………
SEVERANCE………………………………………………………………………….
ENTIRE AGREEMENT………………………………………………………………..
ASSIGNMENT………………………………………………………………………..
NO PARTNERSHIP OR AGENCY…………………………………………………….
THIRD PARTY RIGHTS………………………………………………………………
COUNTERPARTS…………………………………………………………………….
NOTICES…………………………………………………………………………….
GOVERNING LAW……………………………………………………………………
JURISDICTION………………………………………………………………………

Schedule 1 – Subscription Fees…………………………………………………………..

Schedule 2 – Subscription Term………………………………………………………….

Schedule 3 – Mandatory Policies………………………………………………………….

BOOK THE PUB SUBSCRIPTION TERMS version 1, dated november 2021

Background

The Supplier has developed an online search and directory service which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of marketing and raising awareness and the general profile of establishments who subscribe to it including but not limited to public houses and the wider hospitality industry.
The Customer wishes to use the Supplier’s service in support of 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.

Agreed Terms

INTERPRETATION
- The definitions and rules of interpretation in this clause apply in this agreement.

Add-On Services: means the third party services to which the Supplier may refer the Customer, which are subject to the terms applicable to those third party services and which do not form part of the Supplier’s Services under this agreement.

“App” or “Supplier’s Website”: when used in this Agreement generally refers interchangeably to the location or method by which the application the Supplier uses to provide access to the Services is made available and includes both the web-application available on the Supplier’s website at https://www.bookthepub.com and also any other alternative version or instance of the same which the Supplier makes available for download of streaming onto a Device such as a computer or mobile phone, via any third party app-store.

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 2.2(d).

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

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 11.5 or clause 11.6.

Customer: means the public house, hospitality provider or other entity as set out in the relevant Order Confirmation.

Customer Data: the data inputted 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.

Data Processing Agreement: means the set of terms which govern the processing of personal data related to this agreement and the Customer’s Subscription.

Documentation: the documents made available to the Customer by the Supplier online via www.bookthepub.com, www.bookthepub.co.uk or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date that we set out in your Order Confirmation which confirms the starting date for your Subscription Term.

EULA or End User License Agreement: means the end user terms which apply to all use of the Services and every aspect of the Software, and which are supplemented by these Subscription Terms.

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Initial Subscription Term: the initial term of this agreement, commencing on the Effective Date, both as set out in the Order Confirmation.

Mandatory Policies: the Supplier’s business policies and codes as it publishes on the Supplier’s Website from time to time, as amended by notification to the Customer from time to time.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Order Confirmation: means the email or other written confirmation sent by the Supplier to the Customer confirming the details of the Subscription following the Customer’s sign up or as confirmed in relation to any Renewal Period.

Property: means the physical premises or other applicable location(s) from which the Customer operates their business.

Renewal Period: the period described in clause 14.1.

Services: the subscription services provided by the Supplier to the Customer under this agreement via www.bookthepub.co.uk, www.bookthepub.com or any other Supplier Website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.

Software: the online software applications provided by the Supplier as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out at https://www.bookthepub.co.uk/sign-up/ or as otherwise set out on the Supplier’s Website or as specifically agreed by the Supplier in writing and confirmed within an Order Confirmation.

Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services Policy: the Supplier’s policy for providing support in relation to the Services as made available via the App or such other website address as may be notified to the Customer from time to time.

Supplier: means Book the Pub Ltd incorporated and registered in England and Wales with company number 13377397 whose registered office is at Old Ambulance Station, Grammar School Road, Brigg, Lincolnshire, United Kingdom, DN20 8AF.

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

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.

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.

Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
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.
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.
A reference to writing or written includes email but not faxes.
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.
This agreement applies in addition to and in conjunction with the terms and conditions of the EULA. By agreeing to this Subscription agreement, the Customer also agrees to the terms of the EULA and the terms of the Data Processing Agreement. To the extent that the EULA contains any terms which contradict the terms of this agreement, the terms of this agreement shall take precedence.

USER SUBSCRIPTIONS
- Subject to the Customer purchasing the User Subscriptions in accordance with clause 3 and clause 9.1, the 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 sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s business operations for the number of Properties that the Supplier has confirmed within its Order Confirmation.
- In relation to the Authorised Users and the Properties, the Customer undertakes that:
  - the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed one (1) concurrent user per User Subscription it has purchased from time to time;
  - the maximum number of Properties that the Customer can market, display or describe using the Services shall not exceed the number set out in the Order Confirmation;
  - it will not replace or substantially change the details of the Property or Properties that it creates a profile for, for display within the Services, without the prior written consent of the Supplier. Changes which are substantial include but are not limited to change of location, change of ownership, name.
  - each Authorised User shall keep a secure password for their use of the Services and Documentation, which shall be unique to the Services, that such password shall be changed in the event of any inadvertent disclosure or suspicion of security breach on the Customer’s part and that each Authorised User shall keep their password confidential;
  - If the Supplier suspects or has any reason to believe 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 Supplier may elect to promptly disable such passwords and the Customer shall not issue any new passwords to any such individual; and
  - if any audits conducted by the Supplier reveals that the Customer has or is reasonably suspected to have underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out on the Supplier’s Website/App within ten (10) Business Days of the date of the relevant audit.
- The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
  - is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  - facilitates illegal activity;
  - depicts sexually explicit images;
  - promotes unlawful violence;
  - is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  - 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 in relation to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

The Customer shall not:
- 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 Software and/or Documentation (as applicable) 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 Software; or
- access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
- use the Services and/or Documentation to provide services to third parties except as expressly permitted; or
- subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
- introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
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, notwithstanding that access may be granted to those parties.

ADDITIONAL USER SUBSCRIPTIONS AND PROPERTIES
- Subject to clause 2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions or expand the number of Properties in excess of the number set out in the Order Confirmation and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users or activate such additional Properties’ profiles in accordance with the provisions of this agreement.
- If the Customer wishes to purchase additional User Subscriptions or add Properties to its existing Subscription, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions or Properties and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the new or additional Subscriptions or additional profiles for Properties, where applicable, within a reasonable amount of time of its approval of the Customer’s request.
- Where the Customer purchases additional Subscriptions, each Subscription shall form its own contract between the Customer and the Supplier and shall subsist for their own Subscription Term, notwithstanding any existing Subscription Term then in force.
SERVICES
- The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
- The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
  - planned maintenance carried out during the maintenance window of 3.00 am to 7.00 am UK time; and
  - unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
- The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services applicable to the Subscription package the Customer has purchased during Normal Business Hours in accordance with the Supplier’s applicable Support Services Policy as is relevant to the level of Subscription that the Customer has activated and is in effect at the time that the Services are actually provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
DATA PROTECTION

The terms of the Supplier’s Data Processing Agreement will apply to the processing of Personal Data under this Agreement. The Data Processing Agreement is hereby incorporated into this Agreement by reference.

THIRD PARTY PROVIDERS and ADD-ON SERVICES
- The Customer acknowledges that the Supplier may refer it to various third party service providers from time to time, and that referral service forms part of the Supplier’s Services where included within the applicable Subscription to which the Customer has subscribed, but the Supplier does not carry out those Add-On Services itself.
- Add-On Services that are referred, arranged, recommended, or otherwise introduced by the Supplier to the Customer are incumbent upon the Customer to take up or to reject, at the Customer’s sole discretion. The Supplier makes no warranty whatsoever with regard to any third party Add-On Services and the Customer’s rights or remedies in relation to such services and all other matters relating to them are for the Customer to agree with that specific third party who provides those Add-On Services and any terms and conditions which may apply separately to this agreement.
- To the extent that the Supplier recommends a particular third party, the Supplier’s recommendation is based upon the limited information available to it, including user input, and it the sole and exclusive responsibility of the Customer to ensure that such third party services are suitable for its purposes. The Supplier does not perform quality checks on those third parties, and cannot be held responsible for monitoring their performance. The Customer acknowledges and agrees that it shall not place any reliance upon the guidance of the Supplier as to which third party it should work with and that the Customer shall not take any action to its detriment or otherwise solely upon the advice or guidance of the Supplier.
- The Supplier excludes all liability in relation to Add-On Services and the Customer acknowledges that the price paid for the Services do not take into account any risk in Add-On Services whatsoever.
- The Customer acknowledges that the Services may enable or assist it or any End User to access the websites, applications or content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty 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, 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 or any applicable Add-On Services. 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 or any Add-On Services.
SUPPLIER’S OBLIGATIONS
- The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 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 undertaking, Supplier will, at its expense, use 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 the undertaking set out in clause 7.1.
- The Supplier:
  - does not warrant that:
    - the Customer’s use of the Services will be uninterrupted or error-free;
    - that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
    - the Software or the Services will be free from Vulnerabilities or Viruses;
    - the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
  - 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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  - is not responsible for, and the Customer should not under any circumstances rely or take any action or inaction upon or as a result of, the advice of the Supplier. The Supplier may provide guidance from time to time but nothing in this Agreement or under any other circumstances shall amount to such guidance constituting legal advice in any manner.
- 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.
- The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
- The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure which takes a hard copy mirror of all data every 24 hours. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
- Unless otherwise agreed in writing:
  - the Supplier may disclose its identity during the course of providing the Services to End-Users;
  - the Supplier’s and supporting third party service providers Marks may appear on those parts of the Platform that are accessible to End-Users; and
  - such Marks or other third party references may be expressed as “In association with” or “Powered by” or similar expression to acknowledge any contribution deemed applicable by the Supplier from time to time.

CUSTOMER’S OBLIGATIONS
- The Customer shall:
  - 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;

without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure (using appropriate measures such as secure passcodes) that only the Authorised Users use the Services and the Documentation and that they each do so in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’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.

The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

CHARGES AND PAYMENT
- The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9 and the Supplier’s Website.
- The Customer shall on the Effective Date provide to the Supplier (or its authorised third party payments processor) valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
  - its credit card details to the Supplier (including its applicable third party payments processors), the Customer hereby authorises the Supplier (via any applicable third party payments processor) to bill such credit card:
    - on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
    - subject to clause 1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
  - its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
    - on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
    - subject to clause 1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 30 days after the date of such invoice and in any event prior to the commencement of any relevant Subscription Term including any applicable Renewal Period.

If the Supplier has not received payment within 30 days after the due date, or prior to the start of any Subscription Term (or Renewal Period), then without prejudice to any other rights and remedies of the Supplier:
- 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 any or all of 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 3% over the then current base lending rate of Lloyd’s Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this agreement:
- shall be payable in pounds sterling;
- are, subject to clause 3(b), non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out in Schedule 1.
The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3, or any applicable support fees payable pursuant to clause 4.3 and/or any applicable excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 30 days’ prior notice to the Customer and the Order Confirmation shall be deemed to have been amended accordingly.

PROPRIETARY RIGHTS
- The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. 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 or the Documentation.
- The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
- The Customer hereby grants to the Supplier a license to use the Customer’s Marks and the Supplier hereby grants to the Customer a license to use the Services, to the extent reasonably necessary to provide and make use of the Services to and by the Customer for its internal business purposes as further set out in this agreement.
- If the Customer wishes to display the Supplier’s Marks in relation to its use of the Services, the Customer shall:
  - obtain a written licence from the Supplier through the process specified in the Mark Guidelines; and
  - comply with the Mark Guidelines.
- All uses of a party’s Marks under clause 3 or clause 10.3, including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in those Marks.
CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
- 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;
  - was in the other party’s lawful possession before the disclosure;
  - 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.
- Subject to clause 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.
- 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.
- 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 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
- The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
- 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.
- The above provisions of this clause 11 shall survive termination of this agreement, however arising.
- In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.
INDEMNITY
- The Customer shall defend, indemnify and hold harmless the Supplier 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 and/or Documentation, provided that:
  - the Customer is given prompt notice of any such claim;
  - the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
  - the Customer is given sole authority to defend or settle the claim.
- The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this agreement infringes any United Kingdom 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:
  - the Supplier is given prompt notice of any such claim;
  - the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
  - the Supplier is given sole authority to defend or settle the claim.
- 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.
- In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  - a modification of the Services or Documentation by anyone other than the Supplier; or
  - the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
  - the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing and clause 3(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
LIMITATION OF LIABILITY
- Except as expressly and specifically provided in this agreement:
  - the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use or any contractual or other arrangements, services or goods of any nature provided by the Customer to any other end-user of the Services. 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;
  - the Supplier makes no warranty or representation that the Services or its Platform comply with Heightened Cybersecurity Requirements and the Customer assumes sole responsibility for compliance with the same;
  - 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
  - the Services and the Documentation are provided to the Customer on an “as is” basis.
- Nothing in this agreement excludes the liability of the Supplier:
  - for death or personal injury caused by the Supplier’s negligence; or
  - for fraud or fraudulent misrepresentation.
- Subject to clause 1 and clause 13.2:
  - the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, 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
  - the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 2), 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 total Subscription Fees received by the Supplier from the Customer in relation to the relevant affected Subscription(s) during the period of twelve (12) months immediately preceding the date on which the claim arose.
- Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
- The Customer acknowledges that the above limitations of liability are appropriate in the circumstances taking into account the nature and scope of the processing activities carried out by the Supplier when considered against the price actually paid for the Services. The Customer is advised to take out appropriate insurance to cover its potential liability as may arise under this Agreement and the Supplier shall not insure against risks which should rightly be assumed by the Customer as a Data Controller and the Customer acknowledges and accepts that the Supplier does not assume any responsibility of Data Controller or otherwise of the Customer simply by virtue of this agreement.
TERM AND TERMINATION
- This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 1 calendar month (each a Renewal Period), unless:
  - either party notifies the other party of termination, in writing, at least 1 Business Day before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the then current Initial Subscription Term or Renewal Period; or
  - otherwise terminated in accordance with the provisions of this agreement;
  - another Subscription Term is agreed in the Order Confirmation;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

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 fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
- the other party commits a material breach (and smaller repetitive breaches, which do not on their own amount to a material breach, shall not when taken together be considered a material breach) of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
- 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 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 2(c) to clause 14.2(j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- 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; or
- there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
- each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
- 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.

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.

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.

VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

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.

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.

SEVERANCE
- If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
- If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
ENTIRE AGREEMENT
- 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.
- 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.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
ASSIGNMENT
- 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.
- 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.
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).

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.

ONLINE EXECUTION OF CONTRACT
- This agreement may be validly executed by any express action of acceptance or offer on the part of the Customer, which is recordable digitally, where the Supplier issues a written acceptance of the same in the form of an Order Confirmation.
- Email, Docusign, click to accept and verbal authorisation may be taken by the Supplier as an offer to proceed with the Services, and the Supplier shall follow up to confirm any relevant details in writing as part of an Order Confirmation as soon as possible following such agreements.
NOTICES
- Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
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.

JURISDICTION

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).

This Agreement has been entered into on the date stated in the relevant Order Confirmation.