General Customer Terms.
1. Introduction
1.1 - This page sets out the general customer terms (General Terms) which apply to any Services (as defined below) which Supplier (as defined below) licences or provides to Customer (as defined below) unless Customer has entered into a separate written contract with Supplier signed by both parties in respect of the Services.
1.2 - The parties’ agreement for the licensing, use and provision of the Services is made up of (i) these General Terms; (ii) the Proposal; (iii) any terms relevant to specific Software modules for which Customer subscribes, which (if applicable) will be set out here; (iv) any other written document either issued by Supplier (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 - Any order placed by Customer shall only be deemed to be accepted upon Supplier’s signature of, or assent by email to, the Proposal, at which point and on which date the Agreement shall come into existence. If an earlier Commencement Date is specified in the Proposal then the Agreement shall apply retrospectively to the relationship between the parties from such date.
1.4 - These General Terms are published on Supplier’s website. Customer should print or save a copy of these General Terms for its records. Supplier may amend these General Terms from time to time during the Term as specified in clause 17.14 below. Every time Customer agrees a new Proposal with Supplier it should check these General Terms to ensure that it understands the terms which will apply to the Agreement at that time. This version one of these General Terms was most recently updated on August 2021. Historic versions, where applicable, may be obtained by contacting us.
1.5 - Any order placed by Customer shall only be deemed to be accepted upon Supplier’s signature of, or assent by email to, the Proposal, at which point and on which date the Agreement shall come into existence. If an earlier Commencement Date is specified in the Proposal then the Agreement shall apply retrospectively to the relationship between the parties from such date.
1.6 - Any Proposal issued by Supplier shall be valid for a period of 30 days (or such longer period specified on the Proposal) from the date of issue, if not agreed by Customer, at which point the offer outlined in the Proposal shall lapse.
2. Interpretation
2.1 - In the Agreement the following definitions and rules of interpretation shall apply:
Affiliates means any entity that directly or indirectly controls, is controlled by or is under common control with either party, where “control” means having more than fifty percent (50%) ownership or the right to direct the entity’s management, as well as, in the case of Supplier only, PropertyPal.com Limited, Supplier’s sister company;
Agreement has the meaning given to it in clause 1.2;
Authorised Users means those employees and agents of, and independent contractors providing services specifically to, Customer, its Affiliates, and any Subscribing Organisations only, who are authorised by Customer to use the Subscription Services and their ancillary documentation for the Purpose only, who have agreed to the terms of the EULA and in respect of whom Customer has purchased a User Licence;
Beta Services means any Subscription Service identified as a beta, preview or similar. These may be offered as Free Services initially during any applicable Trial Period;
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland;
Commencement Date means the date specified in the Proposal;
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation the Subscription Services and the Documents, and the pricing offered by Supplier) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party. Each Report generated by Customer or its Authorised Users using the Subscription Services shall be treated as the Confidential Information of both parties, which Supplier may not disclose to any third party in the unaggregated, non-anonymised form in which such Reports were originally generated (notwithstanding Supplier’s rights regarding the underlying Customer Data as set out in clause 9.4 below, and which Customer may not disclose to anyone other than its Affiliates or any Subscribing Organisations (as specified in clause 11.5 below). Save for Reports, Customer Data shall not otherwise constitute the Confidential Information of Customer;
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures each has the meaning given to them in relevant UK Data Protection Law;
Charges mean the applicable charges for the Services from time to time, including the Professional Services Charges and the Subscription Charges;
Customer means the organisation purchasing the Services from Supplier, as specified in the Proposal;
Customer Contact means the individual specified on the Proposal, with authority to act on the Customer’s behalf and receive notices on behalf of the Customer pursuant to the Agreement;
Customer Data means the data, content and images inputted by the Authorised Users or (if applicable) Supplier (or its sub-contractors) on Customer’s behalf for the purpose of facilitating Customer’s or its Authorised Users’ use of the Software;
Customer Equipment means a functioning hardware system, internet access and software facilitating access to a modern and high usage web browser, for example, Google Chrome, Mozilla Firefox, Apple Safari or Microsoft Edge, and such other relevant software and/or hardware reasonably notified to Customer by Supplier from time to time;
Customer Personal Data has the meaning given to it in clause 10.2;
Data Protection Law means all applicable data protection and privacy legislation in force from time to time in the UK, including, to the extent applicable, the UK or EU General Data Protection Regulation (GDPR);
Documents v means any documents provided by Supplier in connection with the Subscription Services;
EULA means Supplier’s standard end-user licence agreement which all Authorised Users are required to sign up to before beginning to use the Services, available here;
Free Service means any Service that is provided by Supplier without a charge;
Feedback means any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback on Supplier products or services;
General Terms has the meaning given to it in clause 1.1;
Initial Subscription Term means the initial subscription term, exclusive of any Trial Period, set out in the Proposal, which period shall be a minimum of 12 months unless otherwise specified;
Licence Restrictions means the licence restrictions specified or referred to in the Proposal or elsewhere in the Agreement;
Payment Terms means the payment terms set out in the Proposal (if none are specified, the default payment terms shall require payment of any Charges monthly in arrears, on 30-day payment terms);
Purpose means Authorised Users accessing and using the applicable functions of the Subscription Services (as they are functionally contemplated to operate within the Documents) only for the purposes of Customer’s (including, for the purposes of this defined term only, its Affiliates and any Subscribing Organisations) direct business requirements in respect of properties where Customer has some direct business interest and has paid for rights to generate a Report;
Privacy Policy means, collectively, Supplier’s privacy policy, available here, and cookies policy, available here;
Professional Services means any bespoke professional services to be provided by Supplier to Customer (as agreed from time to time or set out in the Proposal), other than the Subscription Services or basic Support, including, for example, training Authorised Users in use of the Subscription Services;
Professional Services Charges means the service charges detailed in the Proposal for any Professional Services, or which Supplier confirms to Customer from time to time in respect of any further agreed Professional Services;
Proposal means the written quotation for, among other things, licensing and provision of the Services, provided by Supplier to Customer;
Renewal Period means rolling terms of the same duration as the Initial Subscription Term (which, as a default, shall be 12 months where no period is specified for the Initial Subscription Term in the Proposal);
Report means any document, spreadsheet or another form of output containing information produced for the Purpose by an Authorised User using the Subscription Services;
Services mean the Subscription Services, Support and Professional Services;
Software means the relevant modules (or features within such modules, where marketed or sold separately) of Supplier’s property data insight software application tools, collectively known as the PDI™ Tools, for which Supplier has subscribed in the Proposal, including any upgrades to same to which Customer may be entitled to access;
SLA means Supplier’s standard service level agreement for all customers available here;
Subscribing Organisations means, in addition to Customer, those other organisations (if any) referred to within the Proposal whose Authorised Users are permitted to use the Subscription Services and the Documents;
Subscription Charges means the total amounts specified in the Proposal or otherwise payable in accordance with the terms of the Agreement, to be paid in accordance with Payment Terms and other stipulations set out in the Agreement;
Subscription Services means hosting of the Software and making it available for access to Authorised Users using Customer Equipment as a service via https://propertydatainsight.com or Supplier’s other websites, or making the Software available via Third-party Services;
Subscription Term means, in respect of each User Licence, the term beginning on the Commencement Date, and continuing for the Initial Subscription Term, and any Renewal Periods (subject to clauses 8.9 or 16.6), unless and until the Agreement is earlier terminated in accordance with its terms;
Supplier means PropertyPal Data Services Limited (company number NI673817) whose registered office is at Unit 2D Jennymount Business Park, North Derby Street, Belfast, BT15 3HN, trading under the name “Property Data Insight”;
Support means the support services to be provided by Supplier in relation to each Authorised User, for the relevant Subscription Term, and made available, unless otherwise specified, during Supplier’s standard business hours (9am to 5.00pm UK time on Business Days) either via telephone consultation or email contact at help@propertydatainsight.com. Customer agrees to provide access to Supplier to their account where required in order to provide remote support. Supplier may also provide online support resources for Authorised Users;
Term means the term of the Agreement as defined in clause 16.1;
Third-party Services means third party software applications or services, with which the Subscription Services may be integrated or through which they may be made available;
Trial Period means any applicable free-of-charge trial licence period, if offered to Customer (either in the Proposal or otherwise);
Unused Portion means, in respect of any period of the Subscription Term for which Customer has paid Subscription Charges in advance for fixed non-elective Subscription Services, the proportion which the number of days following termination of the Agreement until the end of such remaining Subscription Term bears to the total number of days in that period; and
User Licences means the subscriptions purchased by Customer which entitle Authorised Users to access and use the Subscription Services and the Documents in accordance with the Agreement. Restrictions may attach to specific User Licences for specific Authorised Users, as specified in the Proposal.
2.2 - Clause headings shall not affect the interpretation of the Agreement. References to clauses are to the clauses of these General Terms.
2.3 - Words in the singular shall include the plural and vice versa.
2.4 - A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.5 - Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3. User Licences
3.1 - Customer warrants and represents that any information provided to Supplier by it or on its behalf is complete, accurate and not misleading (including all Customer Data, information concerning its Authorised Users and other information provided as part of its account / Agreement setup process), that it will inform Supplier if at any time that information changes whilst Customer or its Authorised Users continue to use the Subscription Services and acknowledges that Supplier may rely on such information and not seek to establish its reliability.
3.2 - In particular, where Customer is or purports to represent an organisation or entity, Customer (including the person entering into the Agreement on Customer’s behalf in their individual capacity, and the Customer Contact) warrants and represents that it or they are entitled to act in this capacity and to bind such organisation or entity (which shall be correctly specified as Customer in the relevant Proposal), and perform all actions taken by Customer or its Authorised Users via the Subscription Services, including uploading any Customer Data to Customer’s account (including making it available to other Authorised Users, or publicly available to third parties).
3.3 - Customer acknowledges that subject to any limitations set by any of Customer’s Authorised User accounts with administrative privileges, Authorised Users have administrative control over their accounts and may have default access to all Customer Data available through Customer’s centralised account, and that it shall have sole responsibility for supervision and observation of the actions of its Authorised Users.
3.4 - Subject to payment and the other restrictions set out in the Agreement, Supplier hereby grants to Customer, subject to the Licence Restrictions, including any restrictions applicable to the type of User Licence each Authorised User has been granted (if applicable), and subject to compliance with the EULA applicable to each Authorised User, a non-exclusive, non-transferable right to permit the Authorised Users to use the Subscription Services during the Subscription Term of the User Licences for the Purpose. Depending on the terms of the Proposal, Customer acknowledges that access to certain Subscription Services may be limited, including, for example, on a “pay per Report” basis.
3.5 - In relation to the Authorised Users, Customer undertakes that: (a) it shall be responsible for compliance by Authorised Users with the terms of the Agreement and the EULA, and for compliance by any Subscribing Organisations with the terms of the Agreement, and that the restrictions on Customer set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users shall not exceed the number of User Licences Customer has purchased from time to time and Customer will not permit use by the Authorised Users to exceed the type of User Licence purchased (if applicable); (c) it will not allow or suffer any User Licence to be used by more than one individual Authorised User unless it 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 Subscription Services and/or their documentation; (d) each Authorised User shall keep a secure password for their use of the Subscription Services and its documentation, and that each Authorised User shall keep his password confidential; (f) it shall permit Supplier to audit the Subscription Services in order to establish the name of each Authorised User (and ascertain whether they meet the requirements for an Authorised User as set out above); (g) if any of the audits referred to in clause 3.5(f) reveal that Customer has underpaid Subscription Charges to Supplier, then Customer shall pay to Supplier on demand, or Supplier may set off against any sum owed by it to Customer, an amount equal to 400% of the relevant underpayment (as calculated by reference to the Subscription Charges that would have been payable by a third party for such excessive usage) as liquidated damages (the parties acknowledge and agree that this payment represents a genuine pre-estimate of Supplier’s loss and does not impose a detriment on Customer which is disproportionate to the legitimate interests of Supplier in the enforcement of this clause, and is without prejudice to Customer’s obligations to comply with the Agreement); and (h) if any of the audits referred to in clause 3.5(f) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Supplier’s other rights, Customer shall promptly disable such passwords, Supplier shall not issue any new passwords to any such individual, and Customer’s entitlement to that User Licence shall be rescinded for the remainder of the Subscription Term. Customer shall provide all such other information as Supplier reasonably requests in connection with its Authorised Users and any audit as outlined in this clause.
3.6 - Customer must not permit any of its Authorised Users to (a) be under the legal age to use the Subscription Services in the country in which the Authorised User resides (or whose laws apply to them); (b) share with or permit access to any Authorised User’s account by multiple people; or (c) otherwise be in breach of its EULA. If Supplier determines that there has been a breach of this clause, in addition to its other rights, Supplier reserves the right to terminate affected Authorised User accounts, or the Agreement generally, as noted below.
3.7 - Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Subscription Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and Supplier reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
3.8 - Customer shall not: (a) other than as permitted by law, 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 its documentation (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Subscription Services in order to build, or to facilitate the building of, a product or service which competes with the Subscription Services (and Customer may not access the Subscription Services if it, its Affiliates or any Subscribing Organisations are, or are planning to, build any such product or service); or (c) use the Subscription Services to provide services to third parties (other than its Affiliates or any Subscribing Organisations); or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under this clause 3; or (f) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; or (g) attempt to gain unauthorised access to the Subscription Services or their related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Software, or permitting the Software or any part of it to be combined with, or become incorporated in, any other programs.
3.9 - CUSTOMER AGREES NOT TO USE THE SUBSCRIPTION SERVICES TO PROCESS, STORE OR RECORD PERSONAL DATA RELATING TO ANY INDIVIDUAL (OTHER THAN THE DETAILS OF ANY AUTHORISED USERS WHICH ARE COLLECTED AS PART OF THE REGISTRATION PROCESS FOR SUCH AUTHORISED USERS), I.E. ANY INFORMATION FROM WHICH SUCH AN INDIVIDUAL WOULD OR MIGHT BE PERSONALLY IDENTIFIABLE, INCLUDING ANY DETAILS RELATING TO THE OWNER OR OCCUPIER OF ANY PROPERTIES THAT ARE THE SUBJECT OF THE CUSTOMER DATA. CUSTOMER MUST ENSURE THAT ITS AUTHORISED USERS ADHERE TO THIS RESTRICTION, IN PARTICULAR WHEN MAKING COMMENTS ON ANY PROPERTY THE SUBJECT OF A REPORT OR TAKING ANY PHOTOGRAPHS OF SAME. IF CUSTOMER (INCLUDING ITS AUTHORISED USERS) DOES SO IT WILL BE IN BREACH OF THE AGREEMENT AND SHOULD DELETE SUCH DATA IMMEDIATELY AND REDACT IT FROM COPIES OF ANY REPORTS GENERATED USING THE SERVICES. SUPPLIER WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES TO PROCESS PERSONAL DATA.
3.10 - Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documents and, in the event of any such unauthorised access or use, promptly notify Supplier.
3.11 - Customer may, from time to time during the Subscription Term, purchase additional User Licences, rights to access new Software modules via the Subscription Services, or other additional Services. Customer shall, within 30 days of the date of Supplier’s invoice, pay to Supplier the relevant Charges for such additional Services and, if such additional User Licences or access rights are purchased by Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such Charges shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable). Customer may not downgrade its level of access, or reduce the number of User Licences it has purchased during any fixed term (i.e. the then current Initial Subscription Term or Renewal Period, as the case may be), but may, on agreement with Supplier as to any revised Charges, request to reduce its number of User Licences, or access levels, ahead of any renewal term.
4. Services (Including Support)
4.1 - Supplier shall supply, during the Subscription Term, the Support, the Subscription Services and any agreed Professional Services to Customer on and subject to the terms of the Agreement.
4.2 - To the extent Customer uses any Free Services, it acknowledges and agrees that its entitlement to access and use such Free Services constitutes reasonable and sufficient consideration in return for which it is willing to adhere to the terms of the Agreement.
4.3 - The provision of the Subscription Services shall be subject to ongoing service provision by Supplier’s hosting services provider from time to time. Supplier shall use reasonable endeavours to inform Customer in advance of any planned service interruption to the Subscription Services due to its hosting services provider, but for the avoidance of doubt cannot be held responsible for same, save as agreed under the SLA.
4.4 - Supplier will, as part of the Services and at no additional cost to Customer other than the Subscription Charges, provide Customer with basic Support in accordance with the SLA and (if applicable) Supplier’s support services policy at the time that the Services are provided, and shall be subject to fair usage of the Support by Customer. Supplier is a UK based company and typically deals with Support tickets between 9 am and 5 pm GMT on Business Days in the UK. Customer’s representatives must be available to interact with Supplier’s support team where they have any queries regarding a particular Support ticket.
4.5 - Other than the general resource Documents which Supplier makes available online for all users of the Subscription Services, to which Supplier shall have access from the Commencement Date, no training shall be provided as part of Customer’s licence for the Subscription Services, save as specified in the Proposal. If Customer wishes to avail of training outside of this, this shall be separately chargeable as a Professional Service.
4.6 - Bespoke upgrades to Software may be possible, subject to confirmation by Supplier, but will be charged for by Supplier at its then prevailing standard daily rate for Professional Services. Any on-site support required by Customer and agreed by Supplier will be chargeable at Supplier’s then prevailing standard daily rates as a Professional Service.
4.7 - There may be storage limits associated with particular Subscription Services, including as to volumes of Customer Data stored by Customer’s Authorised Users, which are generally subject to fair usage limits. Supplier reserves the right to charge for additional storage or overage fees at the rates specified by Supplier to Customer from time to time, either on Supplier’s website or otherwise. Supplier may impose new, or may modify existing, storage limits for the Subscription Services at any time in Supplier’s discretion, giving notice to Customer, either on Supplier’s website or otherwise. This shall not apply where Customer has agreed on data storage limits under the Proposal, which Supplier shall fix for the Initial Subscription Term of the Agreement.
5. Warranties and Supplier's Obligations
5.1 - Each party represents and warrants to the other that it has the legal power and authority to enter into the Agreement (in the case of an individual representing Customer, on that organisation or entity’s behalf), and that the Agreement and each Proposal is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of the Agreement, and that the Agreement is accordingly binding upon each party and enforceable per its terms.
5.2 - Supplier undertakes that the Services will be performed or delivered with reasonable skill and care expected of a suitably skilled person engaged in the same type of business as Supplier, and otherwise shall comply with the SLA (as applicable), subject to downtimes for planned maintenance or maintenance outside Supplier’s reasonable control and the other limitations outlined in the Agreement.
5.3 - The undertaking at clause 5.2 shall not apply to the extent of any non-conformance which is caused by (a) use of the Services contrary to Supplier's instructions or otherwise than as permitted by the Agreement, (b) modification or alteration of the Software or Subscription Services by any party other than Supplier or Supplier's duly authorised contractors or agents, (c) issues with Customer Equipment; (d) interaction of the Subscription Services with other software programmes or plugins maintained by Customer, or Third-party Services; (e) use of the Software in an application, or with any software, hardware or materials for which it was not intended; or (f) acts or omissions otherwise attributable to Customer and/or outside Supplier’s reasonable control. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance within a reasonable timeframe, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.2. Notwithstanding the foregoing, Supplier does not warrant that Customer's use of the Subscription Services will be uninterrupted or error-free, nor that the Services and/or their documentation will meet Customer's requirements. Other than as set out in clause 5.2, Supplier gives no warranties in relation to the Services.
5.4 - Customer acknowledges that it has assessed the suitability of the Services for its requirements. Supplier does not warrant that the Software, the Services and/or their documentation will be suitable for such requirements or that any use will be uninterrupted or error free.
5.5 - The Agreement shall not prevent 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 the Agreement.
5.6 - Whilst Supplier shall use reasonable endeavours to perform its obligations in a reasonably timely manner, timing for performance of Supplier’s obligations under the Agreement shall not be of the essence (unless and to the extent specified in the SLA).
5.7 - Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
6. Customer's Obligations
6.1 - Customer shall: (a) at its cost, provide Supplier with all necessary co-operation in relation to the Agreement, and all necessary data and access to information as may be required by Supplier, its agents or contractors, in order to render the Services; (b) comply with all applicable laws and regulations with respect to its activities under the Agreement, including any applicable industry code of conduct, recommendations or guidelines issued by any relevant trade organisation or industry body; (c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner (in the event of any delays, Supplier may adjust any agreed timetable or delivery schedule for Services as reasonably necessary); (d) ensure that the Authorised Users, Affiliates and Subscribing Organisations use the Services in accordance with any relevant terms and conditions of the Agreement and shall be responsible for any breach of the Agreement by same; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by Supplier from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment, so as to permit its Authorised Users to access the Subscription Services and avail of the Support; (h) provide a single main point of contact who can address questions or issues relating to the Services (together with a contactable telephone number for such person, ensuring that the majority of calls made to that number are answered by that person or by an authorised representative on their behalf), provide timely feedback and review any changes to the Services; (i) be solely responsible at its own cost for generating Customer Data, content and data required to utilise the services and uploading all such content and data to the site provided to Customer using the Services. In the event that Customer requires any assistance from Supplier in this regard, Supplier has confirmed that any assistance will be chargeable and Customer has approved such assistance, Supplier may provide such assistance as it deems appropriate at its then prevailing charges as a Professional Service; and (j) comply and procure the compliance of its Authorised Users with any reasonable directions given to it by Supplier from time to time, including as posted via the Subscription Services.
6.2 - Where Customer’s Authorised Users take any photographs to be uploaded as Customer Data, they must not include any watermarks, logos, personal data, telephone numbers or email addresses, or otherwise promote an Authorised User or any third party.
7. Third Party Services and Content
7.1 - The Software and Subscription Services also utilise third party and open-source software, and data streams, which are subject to certain third party and open-source licence terms. Accordingly, the terms and conditions set out at the link below shall apply to Customer’s and the Authorised Users’ use of the Software and Services in addition to the provisions set out elsewhere in the Agreement, as well as any other relevant third party or open-source licence terms which may apply from time to time: www.propertydatainsight/eula. Supplier warrants that it has procured permission for the use by Customer of such third party or open-source software or data without any additional cost to Customer, and that Customer will continue to be entitled to use such software and data during the Term (through and as part of its use of the Subscription Services and subject to any applicable limitations on the use of same) provided that it complies with the terms of the Agreement, including the terms linked above.
7.2 - Additionally, Customer may use Third-party Services when accessing the Subscription Services, for example where it downloads an application that integrates with or incorporates the Subscription Services, or links from the Subscription Services to another service. While the Agreement represents the agreement between Supplier and Customer, other parties’ terms govern their relationships. Whilst Supplier takes no responsibility for any Authorised User’s or Customer’s adherence to such terms or the actions taken by such third-parties, Customer warrants and represents that it will honour and adhere to such terms when using the Subscription Services and that Customer will not hold Supplier responsible for any interactions with such third parties or their terms, including for wrongful or negligent acts or omissions, or breaches of contract. Customer acknowledges that Supplier cannot be held responsible for any errors or issues with the Subscription Services to the extent attributable to such Third-party Services.
7.3 - Supplier does not control the content, messages or information found in or on or accessible through Third-party Services. Supplier disclaims and will have no liability regarding such services and any actions resulting from Customer’s, it Affiliates, Subscribing Organisations or their Authorised Users’ use of the same. The availability of such services does not mean Supplier endorses, supports or warrants same.
8. Charges and Payment
8.1 - Customer shall pay the Charges to Supplier in accordance with the Payment Terms.
8.2 - If Supplier has not received payment for any Charges within 10 days after the due date, or notice of a bona fide dispute, without prejudice to any other rights and remedies of Supplier: (a) Supplier may, without liability to Customer, disable Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Services and Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 8% over the then current base lending rate of Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment. Supplier also reserves the right to charge Customer its reasonable administration costs in dealing with any failed payments and/or its costs in relation to pursuing outstanding amounts (including legal fees and expenses).
8.3 - If Customer is paying by credit card, direct debit or other permitted online payment methods, it authorises Supplier to charge Customer’s credit card, bank account or other online payment methods for all Charges payable under the Agreement. Customer further authorises Supplier to use a third party to process payments and consent to disclose Customer’s payment information to such a third party.
8.4 - All amounts and fees stated or referred to in the Agreement: (a) shall be payable in pounds sterling (unless another currency is denominated in the Proposal); (b) are, subject to clause 16.9, non-cancellable and non-refundable; (c) are exclusive of taxes or duties payable under the Agreement as specified below, which shall be added to Supplier's invoice(s) at the appropriate rate; and (d) shall be paid by bank transfer in full and cleared funds to the account specified on Supplier’s invoice, or by such other payment method (which must be kept up to date and accurate) as Supplier may accept from time to time.
8.5 - Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Supplier’s net income or gross revenue) imposed or become due in connection with the provision of Services to Customer under the Agreement. If Customer is located in the EU, Customer must provide Supplier with the VAT registration number under which Customer is registered in Customer’s member state. If Customer does not give Supplier a VAT registration number before Customer’s transaction is processed, Supplier will not issue refunds or credits for any VAT charged.
8.6 - If Customer is required to deduct or withhold any tax it must pay the amount deducted or withheld as required by law and pay Supplier an additional amount so that Supplier receives payment in full as if there were no deduction or withholding.
8.7 - If, at any time whilst using the Services, Customer exceeds the scope of its permitted use of the Subscription Services (for example exceeding data limits), Supplier shall charge Customer, and Customer shall pay, Supplier’s then prevailing charges for such excessive use, without prejudice to Supplier’s other rights under the Agreement.
8.8 - Customer must notify Supplier of any change to its contact information, billing information and credit card information (where applicable) during the Subscription Term.
8.9 - Supplier shall, with effect from the start of each Renewal Period, having given at least fourteen (14) days prior notice to Customer, be entitled to increase its Charges (including for any additional User Licences purchased) and the Charges shall be deemed to have been amended accordingly (unless Customer objects to such increase within 7 (seven) days of notice from Supplier, in which case the Agreement shall not renew into any Renewal Period, unless the parties agree otherwise in writing).
9. Proprietary Rights and Data
9.1 - Customer must notify Supplier of any change to its contact information, billing information and credit card information (where applicable) during the Subscription Term.
9.2 - Except as expressly stated herein, the Agreement does not grant Customer 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 Services, Software and its documentation. This shall be without prejudice to Customer’s ownership of any background intellectual property rights owned by it separately from the Agreement and/or pre-dating the Agreement.
9.3 - Customer may not duplicate, copy, or reuse any portion of Supplier’s Software, Services or trademarks without Supplier’s express permission, save that Customer may link to Supplier’s site, provided it does so fairly and legally and in a way that does not damage Supplier’s reputation or take advantage of it. Customer must not establish a link in such a way as to suggest any form of association, approval or endorsement on Supplier’s part where none exists. Customer must not establish a link to Supplier’s website on any website that Customer does not own unless Customer has relevant authorisations. Supplier reserves the right to withdraw linking permission without notice. The website in which Customer is linking must comply in all respects with the content standards set out in the Agreement and the EULA. Supplier’s website must not be framed on any other site. Supplier may withdraw this licence at any time on notice. If Customer has an account with Supplier and wishes to link to or make any use of Data on Supplier’s website other than as set out in this clause above, it may contact Supplier to request same.
9.4 - Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and the means by which it or its Authorised Users acquire same, as well as compliance of that Customer Data with the terms of the EULA. However, by entering into the Agreement Customer hereby grants to Supplier, its successors, Affiliates and assigns a non-exclusive, irrevocable, perpetual, worldwide, royalty-free licence and right to store, edit, utilise, and display Customer Data for any of its or any third parties’ commercial purposes, including in the provision of the Services and Supplier’s website to third parties. Whilst Supplier reserves the rights set out in this clause, Supplier does not guarantee that any Customer Data will be retained after the termination of the Agreement.
9.5 - Supplier shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for protection of the security, (where applicable) confidentiality and integrity of Customer Data. However, Customer understands and acknowledges that use of the Subscription Services necessarily involves the transmission of Customer Data over networks that are not owned, operated or controlled by Supplier, and that Supplier cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. Supplier does not guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat Supplier’s security measures or those of Supplier’s third party service providers.
9.6 - Neither Customer nor any Authorised Users may access the Subscription Services where they are engaged as an employee or contractor with any business that competes with Supplier own or to attempt to gain access to Supplier’s Confidential Information with a view to building, creating or amending any software or service which competes with any element of the Subscription Service offered by Supplier. Further, during the Subscription Term, and for twelve (12) months thereafter, Customer shall not, or attempt to, build or develop any product or service that commercially competes with or is substantially similar to the Software. This obligation shall cease to apply only where there is no longer a commercial relationship between the parties, and Customer can demonstrate that (a) an independent third party has licensed or sold the Software (or something similar to it) to it on arms’ length terms, and (b) such competing solutions do not incorporate or contain, are not based upon, and do not rely in any way upon any Confidential Information made available by Supplier to Customer, or to which Customer otherwise gained access, under the Agreement or any previous contract between the parties.
9.7 - If Customer (including its Authorised Users) gives Supplier any Feedback, it acknowledges and agrees by accepting the Agreement that Supplier will have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to implement, use, modify, commercially exploit or incorporate the Feedback into Supplier’s products, services, and documentation.
9.8 - Customer acknowledges that it has no right to access the Software in source code form or unlocked coding or comments.
9.9 - Supplier shall use its reasonable commercial endeavours to back-up all Customer Data on a daily basis but otherwise backup of all Customer Data shall be the sole responsibility of Customer. In relation to images comprised in Customer Data, Supplier shall use its reasonable commercial endeavours to procure from its hosting services provider back-up of such images in accordance with its hosting services provider’s terms for provision of back-up services from time to time. In the event of any loss of or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Supplier to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Supplier (or its hosting services provider, as appropriate according to the nature of Customer Data which has been lost or damaged). Customer should note that Supplier’s typical retention periods for any Customer Personal Data are as set out in its Privacy Policy.
10. Data Protection
10.1 - Both parties will comply with all applicable requirements of the Data Protection Law. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Law.
10.2 - The parties acknowledge that for the purposes of the Data Protection Law, as no Personal Data should be comprised within Customer Data (any such Personal Data being Customer Personal Data) (other than as set out in clause 10.3 below) there should be no circumstances in which Customer acts as the data controller and Supplier as the data processor with respect to any Customer Personal Data. However, Supplier’s Privacy Policy provides detailed notice of Supplier’s privacy and data use practices concerning any personal data to which it generally gains access. Supplier requires all authorised users and customers to read, understand and, if applicable to them, adhere to the relevant provisions of the Privacy Policy.
10.3 - As between the parties, it is anticipated that each party may process Personal Data provided by or relating to the other party or its employees including, for example, employee names and email addresses with whom either party interacts, or in the case of the Customer, names and email addresses of Authorised Users. In this context, each party acknowledges that they shall act as a separate and independent data controllers in relation to such Personal Data and only process it for specified purposes in accordance with each party’s respective privacy policy for the purposes of contract administration or otherwise in its own legitimate interests, as permitted under Data Protection Law.
10.4 - Without prejudice to the generality of clause 10.1, and notwithstanding the provisions of clause 10.2, to the extent Customer does process any Personal Data in the context of the Customer Data (or otherwise), it must ensure that: (a) it has obtained all necessary rights, releases and permissions to provide all Customer Data to Supplier for the purposes and duration of the Agreement and to grant the rights granted to Supplier in the Agreement; and (b) Customer Data and its transfer to and use by Supplier as authorised by Customer under the Agreement do not violate any laws (including without limitation those relating to export control, the principle of demonstrable “consent” under Data Protection Law, specifically Article 7 of the EU GDPR) and electronic communications) or rights of any third party, or data subject, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than Supplier’s security obligations under clause 9.3, limited back-up obligations in clause 9.6, legal obligations under Data Protection Law (as set out in this clause 10), any applicable confidentiality obligations in clause 11, and Supplier’s specific uses of any Customer Data contemplated under clause 9.4 above, Supplier assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of determining the purpose and manner in which Customer Data is to be processed, used, disclosed, stored, or transmitted.
10.5 - Without prejudice to the generality of clause 10.1, and notwithstanding the provisions of clause 10.2, Supplier shall, in relation to any Customer Personal Data: (a) process that Customer Personal Data only on the written instructions of Customer unless Supplier is required by Data Protection Law to otherwise process that Customer Personal Data (this shall not impact Supplier’s licensed rights of use in respect of any other Customer Data to the extent it does not incorporate Personal Data); (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep Customer Personal Data confidential; (d) not transfer any Customer Personal Data outside of the UK or the EEA unless the prior written consent of Customer has been obtained and the following conditions are fulfilled: (i) Customer or Supplier has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) Supplier complies with its obligations under the Data Protection Law by providing an adequate level of protection to any Customer Personal Data that is transferred; and (iv) Supplier complies with reasonable instructions notified to it in advance by Customer with respect to the processing of Customer Personal Data; (e) assist Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify Customer without undue delay on becoming aware of a Personal Data breach; (g) at the written direction of Customer, delete or return Customer Personal Data and copies thereof to Customer on termination of the agreement unless required by Applicable Law to store Customer Personal Data (subject always to Customer having paid Supplier any then outstanding charges owing under the Agreement); and (h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
10.6 - Customer consents to Supplier appointing the categories of sub-processor listed in the Privacy Policy or otherwise notified to Customer from time to time by Supplier, as third-party processors of any Personal Data processed by Supplier under the Agreement. Supplier confirms that it has entered or (as the case may be) will enter with such third-party processors into a written agreement substantially on those third party’s standard terms of business (which shall at a minimum require such sub-processors to treat any Customer Data as confidential and process any Customer Personal Data in compliance with Data Protection Law). As between Customer and Supplier, Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
10.7 - If Supplier is deemed to process any personal data on Customer’s behalf when performing its obligations under the Agreement, the parties record their intention that the Agreement would represent the data processing agreement envisaged by Article 28 of the EU GDPR (and the equivalent provision under UK GDPR). In that instance, Customer would be the data controller and Supplier would be a data processor.
11. Confidentiality
11.1 - Neither party will use the other’s Confidential Information except as permitted under the Agreement. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its information of a confidential and proprietary nature but in any event at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorised disclosure of the other party’s Confidential Information, including, without limitation, disclosing such Confidential Information strictly only to those of its or its Affiliates’ employees, representatives, consultants, contractors or agents (together Representatives) who need to know such information, are subject to restrictions around the use of such Confidential Information substantially similar to those set out in this clause. Each party shall be liable and responsible for its Representatives’ adherence to such terms. The preceding obligations will not restrict either party from disclosing Confidential Information of the other party under the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable such party to contest such order or requirement (to the extent permitted by law).
11.2 - For the avoidance of doubt, Supplier may access and use Customer’s Confidential Information under the following circumstances: (a) with Customer’s consent and knowledge, for support reasons; (b) if it has reason to believe such Confidential Information violates the law or of the Agreement (including the EULA in respect of a specific Authorised User’s usage), in which case it reserves the right to access, review, and remove them; (c) where it is compelled by law to disclose Customer’s Confidential Information; or (d) when access is required for operational or security reasons, including when access is required to maintain ongoing confidentiality, integrity, availability and resilience of Supplier's Subscription Services (in which case access will be limited to specifically authorised personnel and only exercised to the extent necessary to facilitate such purposes).
11.3 - Customer is responsible for managing access to its account and Customer Data stored thereon, including invitations, administrative control, and access. Supplier is not responsible for the actions of any of Customer’s Authorised Users in this regard. Nor is Supplier responsible for any third party’s or Authorised User’s adherence to any terms imposed by Customer as a pre-requisite for access to its Customer Data.
11.4 - In accessing the Subscription Services, Customer and its Authorised Users may also gain access to information relating to Beta Services which Supplier considers to be Confidential Information, and Customer agrees on behalf of itself and its Authorised Users to protect and keep strictly confidential such Confidential Information per this clause 11.
11.5 - Any Reports or other data output from the Subscription Services may only be used by and shared by the Customer with its Affiliates and Authorised Users, and otherwise must be treated as the Confidential Information of both parties. The warranties given under the Agreement are given only to Customer, and Supplier accepts no duty of care to any third party (including Customer’s Affiliates). Any communication of Reports or other data output from the Subscription Services by Customer to its Authorised Users or Affiliates must be made on the basis that such parties acknowledge and accept in writing that such information must be treated as confidential, is not for onwards transmission, and is provided on a non-reliance basis (in light of the fact that Supplier’s warranties are given only to Customer).
12. Non-solicitation
12.1 - During the Term and for 12 months thereafter, Customer shall not, directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage to leaving their employment or engagement, any employee or independent contractor of Supplier known to Customer through the Agreement or the Services. For the avoidance of doubt, general public advertisements for employment or engagement and any individual’s response thereto will not be deemed a violation of this clause.
12.2 - If Customer breaches clause 12.1, it shall pay to Supplier on demand, or Supplier may set off against any sum owed by it to Customer a total of, 600% of the relevant employee or contractor’s yearly salary or payments (based on the last full tax year, before tax) as liquidated damages. The parties acknowledge and agree that this payment represents a genuine pre-estimate of Supplier’s loss and does not impose a detriment on Customer which is disproportionate to the legitimate interests of Supplier in the enforcement of clause 12.1, and is without prejudice to Customer’s obligations under the Agreement.
13. Indemnity - Customer's Attention is Particularly Drawn to this Clause
13.1 - Customer shall defend, indemnify and hold harmless Supplier and its, directors, agents, employees and Affiliates 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 its and/or the Authorised Users’ (including Subscribing Organisations’) use of the Services including, without limitation, for any liability, damages, costs or claims incurred by Supplier due to use of the Services for any purpose outside of the Purpose, any claim relating to Customer Data or Reports, including, without limitation, any claim brought by a third party alleging that Customer Data, or Customer’s use of the Subscription Services in breach of the Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law, save to the extent directly attributable to Supplier’s breach of the Agreement, or any claim in consequence of any person or entity’s use of, and/or reliance on, any data output generated through use of or access to the Subscription Services (including any Report).
14. Limitation of Liability – Customer’s Attention is Particularly Drawn to this Clause
14.1 - This clause 14 sets out the entire financial liability of Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of: (a) any breach of the Agreement (including without limitation, any claim under clause 13.1); (b) any use made by Customer of the Services, Documents or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 - Except as expressly and specifically provided in the Agreement (including the SLA, where applicable): (a) 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 the Agreement, including without limitation any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement; (b) the Services, Documents and all other services, goods or works provided, procured and/or sub-contracted by Supplier under the Agreement, including any data output from same, are provided to Customer on an “as is” and “as available” basis; and (c) Customer assumes sole responsibility for the use of the Services and Documents by Customer and Authorised Users, and for conclusions drawn from such use, including any decisions made as a result of Customer’s use of the Subscription Services. Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to Supplier by Customer in connection with the Services, or any actions taken by Supplier at Customer’s direction.
14.3 - Supplier does not warrant that the Subscription Services will meet Customer’s requirements; that the Subscription Services will be uninterrupted, timely, secure, or error-free; that the information provided through the Subscription Services is accurate, reliable or correct; that any defects or errors will be corrected; that the Subscription Services will be available at any particular time or location; or that the Subscription Services or their underlying Software will be free of viruses or other harmful components. Supplier will not be responsible for any risk of loss resulting from Customer’s downloading or using files, information, Reports, data or other material obtained from the Subscription Service.
14.4 - Supplier may, from time to time at its discretion, generally upgrade and improve the Subscription Services for all customers as it sees fit, and Customer acknowledges that such upgrades and improvements may affect its use of the Subscription Services. This notwithstanding, Customer shall have no entitlement to access all the Software and may only access those modules of the Software (or where applicable the features of those modules) specified in the Proposal. If Supplier introduces new Software modules following the Commencement Date, or premium or enhanced features for existing modules, access to such modules or features via the Subscription Services shall be separately chargeable at Supplier’s option.
14.5 - Nothing in the Agreement excludes the liability of either party: (a) for death or personal injury caused by such party’s negligence, or (b) for fraud or fraudulent misrepresentation or (c) any other liability which cannot strictly be excluded or limited by relevant law.
14.6 - Subject to the foregoing: a) 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 the Agreement; and (b) Supplier’s 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 the Agreement shall be limited to an amount equal to the Subscription Charges actually paid by Customer over the 12 month period immediately pre-dating the date on which the relevant claim arose.
14.7 - Customer acknowledges and accepts that (a) Supplier does not and cannot warrant or represent that the Services are compliant with any regulatory or legal requirements to which Customer may be subject, or which may be relevant to the purposes for the Services may be used, and (b) Supplier cannot be held responsible or liable for human error (including on the part of other customers or authorised users of the Subscription Services) or negligent or fraudulent use of the Services.
14.8 - Customer acknowledges and accepts that the above limitations, and those outlined elsewhere in the Agreement, are fair, proportionate and reasonable in light of, among other things, the nature of the Subscription Services (including the limitations outlined in clause 14.9 below) and that neither Supplier nor its Affiliates shall be under any obligation to monitor or review the Customer Data or any third party data featured or used in or by the Subscription Services (although Supplier reserves the right to do so).
14.9 - Customer acknowledges that the nature of the Subscription Services and the data made available through them is such that the Supplier relies on Customer, its Authorised Users, and other third party sources for all data which its features or uses in delivery of the Subscription Services (other than the underlying Software) and that it does not have the means to establish the accuracy, relevance or completeness of that information. Supplier makes no representation or warranty about the accuracy, relevance or completeness of such data and the data is not intended to be, and must not be treated by Customer as, comprehensive but an aggregation of the content and data available to Supplier at the time of provision and subsequently made available to Customer in accordance with its level of access to the Subscription Services. Accordingly, it is important that if Customer has reason to believe that any information it (including its Authorised Users) have accessed or uploaded through the Subscription Services is or may be false, misleading, irrelevant or incomplete it must notify promptly Supplier accordingly.
15. Free Services and Beta Services
15.1 - Customer acknowledges that all Free Services (including in this section any Beta Services (i.e. preview or early access Services)) may be subject to change at any time without notice. Customer uses Free Services entirely at its own risk. Supplier gives no warranties whatsoever, and to the extent permitted by law, accept no liabilities whatsoever regarding the Free Services and their use by Customer or any Authorised Users.
15.2 - Access to the Free Services and Beta Services (which have not been paid for) is permitted temporarily, and Supplier may suspend, withdraw, discontinue or change all or any part of the Free Services, either generally or to Customer specifically, at any time, for any reason, with or without notice. Supplier will not be liable to Customer if, for any reason, the Free Services are unavailable at any time or for any period.
15.3 - Customer acknowledges and agrees that access and use of any applicable Free Services or Beta Services Supplier offers constitutes reasonable and sufficient consideration. In return for that access, Customer is willing to adhere to the terms of the Agreement.
15.4 - As a Beta Services user, Customer may get access to information that isn't yet publicly available about new products and features that Supplier plans to offer. Given the nature of this information, it is important that Customer keeps it confidential. Customer agrees that any Beta Service information that isn't yet in the public domain, for example, information about a preview for a new Beta Service, is Supplier’s Confidential Information, whether or not expressly labelled as such. Customer agrees only to use such Confidential Information to test and evaluate the Beta Service, not for any other purpose. Customer also agrees not to disclose, publish, or share any Confidential Information with or to any third party unless it has set up the Beta Service in such a way that expressly encourages this (for example, where Customer is part of a forum Supplier has organised to trial or discuss a new Beta Service).
15.5 - Supplier’s Confidential Information relating to Beta Services does not include information that is: (a) (or becomes) publicly available without breach of the Agreement through no act or inaction on Customer’s part (for example, where a previously private Beta Service is rolled out as a regular Service by us); (b) independently developed by Customer without breach of any confidentiality obligation to Supplier or any third party; or (c) disclosed with Customer’s express written permission from Supplier. If Customer is required to disclose Confidential Information according to any order by a court or regulatory authority with jurisdiction over Supplier, it may do so provided that Supplier has been given reasonable advance written notice to object (unless prohibited by law) and the disclosure is limited to the maximum extent possible to comply with such an order of law.
16. Term and Termination
16.1 - This Agreement shall commence on the Commencement Date, or the date the Proposal is agreed or signed by both parties, whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Subscription Term (the Term).
16.2 - Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; (c) the other party ceases, or threatens to cease, to trade; or (d) the other party undergoes a change in control (as defined in section 1124 of the Corporation Tax Act 2010).
16.3 - Supplier may also terminate the Agreement (a) for cause on fourteen (14) days notice if Supplier determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect Supplier, Supplier’s prospects, or Supplier’s customers; (b) immediately, if Customer has persistently breached the Agreement; or (c) on fourteen (14) days' written notice to Customer in the event that, in Supplier’s reasonable opinion, Customer’s financial position is such that Customer’s capability to adequately fulfil its obligations under the Agreement is in material jeopardy.
16.4 - Save as specified in the Agreement, and to the extent permitted by law, the Agreement may not be terminated prior to the end of the Subscription Term.
16.5 - Supplier may immediately suspend any Authorised User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Services in a way that violates applicable laws or regulations or the terms of the Agreement (including the EULA), (ii) posting or uploading material that infringes or is alleged to infringe on the intellectual property rights of any person or relevant law, or (iii) to protect the integrity, operability, and security of the Subscription Services. Supplier may, without notice, review, edit and delete any Customer Data that Supplier has reason to determine in good faith violates the Agreement (including the EULA), provided that the parties acknowledge and agree that Supplier has no duty to, and shall not, pre-screen, control, monitor or edit Customer Data. Supplier will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Subscription Services.
16.6 - The Subscription Term shall automatically renew over each Renewal Period unless and until either party gives notice to the other in writing (including by email) that it does not wish the Agreement to continue beyond the Initial Subscription Term or the then current Renewal Period, such notice to expire no later than 14 days prior to the end of the Initial Subscription Term or the then current Renewal Period.
16.7 - Where Customer is offered a Trial Period in the Proposal (assuming that there is a Proposal and the other terms are agreed that are required for a full Agreement, including any Charges, Services and the relevant Initial Subscription Term), either party shall be entitled to give notice to the other in writing (including by email) that it wishes the Agreement to continue beyond the Trial Period at any time prior to the expiry of the Trial Period. If no such notice is given the Agreement shall automatically terminate. On termination, Supplier may issue a new Proposal to Customer, which if agreed will constitute a new Agreement for the provision of the Services on a paid basis.
16.8 - On expiry or termination of the Agreement for any reason: (a) (other than where Customer validly and lawfully terminates in accordance with clause 16.2(a)) all Charges shall immediately become payable and shall be paid in full; (b) all licences granted under the Agreement shall immediately terminate, even if no expiration date is specified in the Proposal provided by Supplier, and Customer and its Authorised Users shall immediately cease all use of the Services; (c) each party shall return and make no further use of any Confidential Information belonging to the other party; (d) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 2, 8, 9, 10, 11, 12, 13.1, 14, 15.1, 15.2, 15.4, 15.5, 16.7, 16.8, 16.9 and 17) or implicitly surviving termination, shall not be affected or prejudiced; and (e) subject to payment of a fee where applicable, Supplier will make reasonable efforts to provide Customer with a copy of its lawful, non-infringing Customer Data held in its or its Authorised Users’ accounts upon request, provided that Customer makes this request within 90 days of termination. Otherwise, Supplier will retain and use Customer Data as necessary to comply with its legal obligations, resolve disputes, and enforce Supplier’s agreements (and as further set out in Supplier’s Privacy Policy), but barring legal requirements, Supplier will delete all Customer Personal Data within its control within the periods specified and subject to any limitations set out within Supplier’s Privacy Policy. Otherwise, other Customer Data may be retained by Supplier indefinitely, but Supplier does not guarantee that any Customer Data can be recovered once this Agreement is terminated and any Authorised User Accounts closed.
16.9 - Where Customer validly and lawfully terminates in accordance with clause 16.2(a) Supplier shall within 20 Business Days reimburse to Customer the Unused Portion of any Subscription Charges pre-paid by Customer.
17. General
17.1 - Supplier shall have no liability to Customer under the Agreement if it is prevented from or delayed in performing its obligations under the 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 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, where reasonably practicable, Customer is notified of such an event and its expected duration.
17.2 - A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
17.3 - Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
17.4 - If any provision (or part of a provision) of the 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. 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.
17.5 - The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to their subject matter. Supplier’s obligations are not contingent on the delivery of any future functionality or features of the Subscription Services or dependent on any oral or written public comments made by Supplier regarding the Subscription Services’ future functionality or features.
17.6 - Customer shall not, without the prior written consent of Supplier (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Supplier shall be free to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the consent of Customer but providing notice of any assignment or transfer. Supplier may also appoint a suitably qualified sub-contractor to perform or provide certain Services on its behalf. Customer will continue to be liable to pay Supplier any fees due under the Agreement and shall not be liable directly for any of the subcontractor’s fees or expenses. Supplier shall remain responsible for the performance by its sub-contractor of any sub-contracted Services and shall not sub-contract the Subscription Services in their entirety.
17.7 - Nothing in the 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).
17.8 - Other than Supplier’s Affiliates (who may enforce the relevant provisions of the Agreement in their favour directly), and its third party licensors (who may enforce the applicable licences Customer has agreed under clause 7.1 directly), nothing in the Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it, and any such person shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (or otherwise) to enforce any term of the Agreement.
17.9 - Any notice required or permitted to be given under the Agreement shall be in writing and shall be delivered or transmitted to the intended recipient's address as specified in the Agreement or such other address as either party may notify in writing to the other from time to time for this purpose. It may also, in the case of notice by Supplier only, be generally notified to customers via the Subscription Services, or notified by way of email to the email address Supplier has recorded for the Customer Contact (who shall be deemed to have authority to accept receipt of such notices on Customer’s behalf). Any notice shall be treated as having been served on delivery if delivered by hand, 4 Business Days after posting if sent by pre-paid first class post. In the case of a notice served by posting on Customer’s account or by email, the notice shall be deemed given at the time such upload goes live onto the website or at the time of transmission of the email (respectively).
17.10 - The construction, validity and performance of the Agreement shall be governed by the laws of Northern Ireland, and the parties submit any dispute regarding the construction, validity performance of the Agreement, or its subject matter, or any non-contractual disputes, to the exclusive jurisdiction of the courts of Northern Ireland.
17.11 - The Proposal may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed valid Proposal (in counterparts or otherwise) by electronic transmission, or its signature via DocuSign or other eIDAS compliant signature platforms, or Customer’s confirmation by email of its agreement to the terms of a valid Proposal (once acknowledged and agreed by Supplier), shall be sufficient to bind the parties to the terms and conditions of the Agreement.
17.12 - All Professional Services and Support, the Agreement and any correspondence between the parties regarding the Agreement’s subject matter shall be exclusively in the English language.
17.13 - Supplier might make versions of the Agreement available in languages other than English. If Supplier does, the English version of the Agreement will govern Supplier’s relationship. The translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
17.14 - Unless otherwise stated in these General Terms, no amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The above notwithstanding, Supplier may, acting in its sole discretion, amend these General Terms, or the SLA, from time to time and will use reasonable endeavours to provide Customer with thirty (30) days’ notice before making the change effective when it does so, where reasonably appropriate. Such changes shall take effect any objection of the Customer notwithstanding. Supplier agrees that it shall not make any unilateral variation to these General Terms which purports to increase its Charges (including for any additional User Licences purchased), which increases shall be dealt with pursuant to clause 8.9 of these General Terms. Every time Supplier enters into a new Proposal with any Customer, the terms applying to the Agreement between the Parties shall be as outlined in the relevant version of these General Terms and SLA in force at the time of the signing of the relevant Proposal.
In association with
