Terms and conditions
Terms and Conditions of Aprobrium Limited trading as Lexacom
These are the standard terms and conditions of business of Aprobrium Limited trading as Lexacom (“the Supplier”) of East Court, Hardwick Business Park, Noral Way, Banbury, OX16 2AF (registered number 3835983)
The Customer’s attention is particularly drawn to the provisions of clause 13.
1 Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Authorised Users: those employees, agents and independent contractors of the Customer for whom User Subscriptions have been purchased and who are authorised by the Customer to use the Services.
Bespoke Development Fees: means the fees for the provision of the Bespoke Development Work Services agreed in accordance with clause 4.11.
Bespoke Development Work Services: means the additional services which the Supplier is able to deliver and which the Customer is able to request in accordance with the process set out in clause 4.11
Bespoke Specification Authority Document: means the document describing the Services set out in Quotation.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Cancellation Fee: means the fee payable by the Customer to the Supplier in the event of the circumstances set out in clauses 4.5 or 4.6 arising at such rate as is set out in the Pre Installation Guide.
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.
Client Installation Date: means the date the Services go live and are available to the Authorised Users, as such date is confirmed by the Supplier to the Customer.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: means these terms and conditions as amended from time to time in accordance with clause 16.1.
Contract: means the contract between the Supplier and the Customer in accordance with these Conditions for the supply of the Goods and/or Services and/or Installation Services and/or Remote Installation Services as set out in the Quotation and any Bespoke Development Work Services purchased in accordance with clause 4.11.
Customer: the person or firm who accepts the Quotation from the Supplier in accordance with clause 2.2.
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.
Goods: means the Goods, if any, (or any part of them) set out in the Quotation.
Goods Fee: means the fee for the sale and purchase of the Goods, if any, as set out in the Quotation.
Initial Subscription Commencement Date: shall be the same date as the Client Installation Date.
Initial Subscription Term: means the period of one year from the Initial Subscription Commencement Date.
Installation Fee: means the fee set out in the Pre Installation Guide for the delivery of the Installation Services and/ or the Remote Installation Services.
Installation Services: means the onsite installation services to be delivered by the Supplier as set out in the Pre Installation Guide.
Minimum Requirements: means the minimum requirements specified by the Supplier for the operation of the Services as set out in the Pre Installation Guide in force at the Commencement Date.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order: means the Customer’s written acceptance of the Quotation in the form set out on the Quotation.
Pre Installation Guide: means the Statement of Work document sent to the Customer by the Supplier setting out the Minimum Requirements and the Installation Services or Remote Installation Services and the Installation Fee which has been signed by the Customer indicating the Customer’s acceptance of such terms in accordance with clause 4.3.
Quotation: means the offer issued by the Supplier to the Customer for the supply of certain goods and services subject to the Conditions.
Remote Installation Services: means the remote installation services to be delivered by the Supplier as set out in the Pre Installation Guide.
Returns Policy:means the Supplier’s policy in force from time to time found at www.lexacomcloud.com as to how it will deal with any warranty claims under clause 7.
Renewal Period: the period described in clause 14.1.
Services: the subscription services provided by the Supplier to the Customer under this Contract via www.lexacom.com or www.lexacom.co.uk or any other website notified to the Customer by the Supplier from time to time.
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 and the provision of support (in accordance with clause 4.10), as set out in the Quotation which comprises a one off licence fee and a recurring annual subscription fee.
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
SLA: the Supplier's Service Level Agreement for providing support in relation to the Services in accordance with clause 4.10 as made available at www.lexacomcloud.com/support or such other website address as may be notified to the Customer from time to time.
User Subscriptions: the number of user subscriptions and associated licences for the Software purchased by the Customer as set out in the Quotation (or as increased in accordance with clause 3) which entitle Authorised Users to access and use the Services in accordance with these Conditions.
Virus: anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes and e-mail.
2 Basis of Contract
2.1 The Quotation constitutes an offer by the Supplier to supply the Goods and/or the Services (and if indicated the Installation Services or Remote Installation Services) to the Customer in accordance with these Conditions.
2.2 The Quotation shall only be capable of acceptance by the Customer returning a signed copy of the Quotation and on receipt of such by the Supplier the Contract shall come into existence (“the Commencement Date”). No other method of acceptance of the Quotation is permitted without the written consent of the Supplier.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the goods and/or the services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods and/or services described in them that can be delivered by the Supplier. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or cause of dealing.
2.6 Any Quotation given by the Supplier is only valid for a period of 20 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of the Goods and/or the Services and/or Installation Services and/or Remote Installation Services as indicated on the Quotation except where application to one or the other is specified in these Conditions.
3 User subscriptions
3.1 Subject to the restrictions set out in this clause 3 and the other terms of these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
3.2.2 it will not allow or suffer any User Subscription 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 Services;
3.2.3 each Authorised User shall keep a secure password for his or her use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his or her password confidential;
3.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;
3.2.5 itshall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter or as necessary to enable the Supplier to carry out the support services set out in clause 4.10, at the Supplier's expense, andthis right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
3.2.6 if any of the audits referred to in clause 3.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
3.2.7 if any of the audits referred to in clause 3.2.5 reveal that the Customer has 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 within 5 Business Days of the date of the relevant audit.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to the Services in the event of any breach of the provisions of this clause.
3.4 The Customer shall not:
3.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Contract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2 access all or any part of the Services in order to build a product or service which competes with the Services; or
3.4.3 use the Services to provide services to third parties; or
3.4.4 subject to clause 16.6, 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
3.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 3.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.7 Subject to clauses 3.8 and 3.9, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Quotation and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of these Conditions.
3.8 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld) together with confirmation of the additional Subscription Fees payable which shall be based on the Supplier’s standard published price list in force from time to time.
3.9 If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall pay to the Supplier the relevant fees for such additional User Subscriptions in accordance with the provisions of clause 9.2.
4 Installation, Services and Support
4.1 The Supplier shall in consideration of the Subscription Fee, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Contract.
4.2 The Order shall set out if the Customer has purchased the Installation Services or the Remote Installation Services in consideration of payment of the Installation Fee which shall be payable in accordance with Clause 9.
4.3 If the Installation Services are part of the Order the Customer shall return a signed copy of the Pre Installation Guide to the Supplier and on its receipt the Supplier shall contact the Customer after the Commencement Date to arrange a date for the provision of the Installation Services.
4.4 If the Remote Installation Services are part of the Order the Customer shall return a signed copy of the Pre Installation Guide to the Supplier and on its receipt the Supplier shall contact the Customer after the Commencement Date to arrange a suitable time for delivery of the Remote Installation Services.
4.5 In the event that the Customer cancels an engineer’s agreed visit date to provide the Installation Services or is unavailable at the agreed time for provision of the Remote Installation Services without giving 2 Business Days’ notice, the Supplier shall charge the Cancellation Fee.
4.6 In the event that the Supplier cannot provide the Installation Services or the Remote Installation Services because of non-compliance with the Pre Installation Guide then the Supplier shall charge the Cancellation Fee.
4.7 The Cancellation Charge shall be payable in accordance with clause 9.
4.8 In the event that neither the Installation Services nor the Remote Installation Services are purchased by the Customer, the Supplier shall have no liability for breach of its warranty in clause 7.1 due to incorrect installation of the Services by the Customer.
4.9 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance where the Supplier shall use commercially reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance of such work.
4.10 The Supplier will, as part of the Services and in consideration of the Subscription Fee, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's SLA in effect at the time that the Services are provided. The Supplier may amend the SLA in its sole and absolute discretion from time to time.
4.11 During the Subscription Term the Customer may request that the Supplier provides Bespoke Development Work Services. In the event of such request the Supplier shall provide a written quotation for the provision of such Bespoke Development Work Services and the level of Bespoke Development Fees. Once such quotation is accepted by the Customer the provision of such Bespoke Development Work Services shall be governed by these Conditions as varied by any terms included in the Supplier’s quotation.
5 Customer data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Customer acknowledges that it is solely responsible for ensuring that it operates appropriate back up arrangements in respect of any Customer Data. Unless the Services include the provision of data storage, the Customer acknowledges that the Supplier shall not have any responsibility for any loss, destruction, alteration or disclosure of Customer Data, save to the extent that it is caused by an error in the Services.
5.3 Solely to the extent that the Services expressly includes the provision of data storage, the Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available at www.lexacomcloud.com or such other website address 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 where the Services includes the provision of data storage, the Customer's sole and exclusive remedy 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 described in its Back-Up Policy. 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)
5.4 The Supplier shall, in providing the Services, comply with its Privacy and Security Policyrelating to the privacy and security of the Customer Data available at www.lexacomcloud.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
5.5 If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Contract, the parties agree that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
5.5.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this Contract;
5.5.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Contract on the Customer's behalf;
5.5.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
5.5.4 the Supplier shall process the personal data only in accordance with the terms of this Contract and any lawful instructions reasonably given by the Customer from time to time; and
5.5.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6 Goods
6.1 The Goods, if being supplied under this Contract, are as described and specified in the Quotation.
6.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
6.3 The Supplier shall ensure that:
6.3.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
6.3.2 if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
6.4 The Supplier shall deliver the Goods by courier to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
6.5 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
6.6 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a force majeure event as described in clause 15 or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.7 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a force majeure event as described in clause 15 the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
6.8 If the Customer fails to accept or take delivery of the Goods on their arrival at the Delivery Location the Supplier shall be entitled to invoice the Customer for all related costs and expenses it incurs in the Goods being returned to the Supplier.
6.9 In such event that the Customer fails to accept or take delivery of the Goods on their arrival at the Delivery Location and such items are returned to the Supplier the Customer shall be deemed to have cancelled the Order.
6.10 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.11 The risk in the Goods shall pass to the Customer on completion of the delivery.
6.12 Title in the Goods shall not pass to the Customer until the Supplier receives payment in full in cleared funds for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due in which case title to the Goods shall pass at the time of payment of all such sums.
6.13 Until title to the Goods has passed to the Customer, the Customer shall
6.13.1 store the Goods separately from all other Goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.13.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.13.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
6.13.4 notify the Supplier immediately if it becomes subject to any of the events listed in clauses14.2.3 to 14.2.11 inclusive; and
6.13.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.14 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2.3 to 14.2.11 inclusive, then, without limiting any other right or remedy the Supplier may have;
6.14.1 The Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
6.14.2 The Supplier may at any time;
(a) require the Customer to deliver up all Goods in its possession which have not been resold or irrevocably incorporated into any product; and
(b) if the Customer fails to do so promptly, enter into any premises of the Customer or of any third party where the Goods are stored to recover them.
7 Supplier's obligations and Warranties
7.1 Subject to clause 7.2 and clause 13, the Supplier warrants that the Services and any Bespoke Development Work Services will perform substantially in accordance with the Bespoke Specification Authority Document. Further the services, Bespoke Development Work Services (if any), Installation Services (if any) or Remote Installation Services (if any) will be performed with reasonable skill and care. The Supplier shall have the right to make any changes to the Service which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.2 The warranty at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions or the Customer not complying with its obligations in clause 8 regarding the Minimum Requirements or due to incorrect installation of the Services by the Customer, 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 such warranty, the Supplier will, at its expense, use all reasonable 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 warranty set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
7.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services will meet the Customer's requirements; and
7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This Contract shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and/or services which are similar to those provided under this Contract.
7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Contract.
7.5 Subject always to clause 7.7 and clause 13, the Supplier warrants that on delivery , and for aperiod of 6 months from the date of delivery ( or such longer period if the manufacturer of such Goods provides such warranty directly to the Customer) (“Warranty Period”), the Goods shall:
7.5.1 conform in all material respects with their description;
7.5.2 be free from material defects in design, material and workmanship; and
7.5.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
Subject to clause 7.6, if during the Warranty Period the Customer discovers that some or all of the Goods do not comply with the warranty set out in clause 7.5 it shall follow the returns process set out in the Supplier’s Return Policy and the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full in accordance with the terms of its Return’s Policy.
7.6 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 7.5 if:
7.6.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.5;
7.6.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
7.6.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
7.6.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
7.6.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
7.6.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.7 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.5.
7.8 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 7.6 for the remainder of the original Warranty Period only.
8 Customer's obligations
8.1 The Customer shall:
8.1.1 provide the Supplier with all necessary co-operation in relation to this Contract 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 and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities under this Contract;
8.1.3 carry out all other Customer responsibilities set out in this Contract in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Services in accordance with the Conditions and shall be responsible for any Authorised User's breach of this Contract;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Contract, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
8.1.7 be solely responsible for procuring and maintaining 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; and
8.1.8 be fully responsible for ensuring that the Minimum Requirements are met at all times during the Subscription Term.
8.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act of omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
8.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
8.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9 Charges and payment
9.1 The Customer shall pay in accordance with this clause 9, the Subscription Fees for the Services ( including for any additional User Subscriptions) and, if set out in the Quotation, the Goods Fees for the Goods, and the Installation Fee for the Installation Services or Remote Installation Services. In addition the Customer shall pay any Cancellation Fees in accordance with this clause 9 if the circumstances in clauses 4.5 or 4.6 arise. If the Customer requests the provision of Bespoke Development Work Services and such are delivered by the Supplier in accordance with clause 4.11, the Bespoke Development Fees shall be payable in accordance with this clause 9.
9.2 The Supplier shall invoice the Customer annually in advance for the Subscription Fees. The Goods Fees ( if any) shall be invoiced by the Supplier on despatch of the Goods .Any Installation Fee or Bespoke Development Fees or additional Subscription Fees for additional User Subscriptions, shall be invoiced by the Supplier on delivery of the relevant services or as otherwise agreed in writing by the Supplier. Any Cancellation Fee shall be invoiced by the Supplier after any event as set out in clauses 4.5 or 4.6 arises. All invoices shall by due for payment by the Customer on the date of receipt or no later than 5 Business Days of date of invoice (whichever shall occur first) or such other date as may be agreed in writing by the Supplier.
9.3 With the Supplier’s written agreement, the Customer may pay the Subscription Fees, including any fees for additional User Subscriptions, by monthly direct debit provided it has supplied to the Supplier valid, up-to-date and completed direct debit details before the Initial Subscription Term Commencement Date. If the Customer has set up a direct debit payment the Customer hereby authorises the Supplier to take payment of all invoices issued under this Contract via such direct debit on 10th or 25th of each month.
9.4 If the Supplier has not received payment within 30 daysafter the due date or in the event of the Customer’s cancellation of its direct debit, and without prejudice to any other rights and remedies of the Supplier:
9.4.1 the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.4.2 interest shall accrue on a daily basis on such due amounts at the level of and in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5 All amounts and fees stated or referred to in these Conditions shall be payable in pounds sterling and are exclusive of VAT which shall be added to the Supplier’s invoice at the appropriate rate.
9.6 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days' prior notice to the Customer.
10 Proprietary rights
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Contract.
11 Confidentiality
11.1 Each party shall during the term of this Contract and thereafter keep confidential , and shall not use for its own purposes (other than implementation of this Contract) nor without the prior written consent of the other, disclose to any third party (except its professional advisors or as may be required by law or any legal or regulatory authority), any information of a confidential nature which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge, or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Contract, and subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
11.2 No party shall make, or permit any person to make, any public announcement concerning this Contract 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.
11.3 This clause 11 shall survive termination of this Contract, however arising.
12 Indemnity
12.1 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, provided that:
12.1.1 the Customer is given prompt notice of any such claim;
12.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
12.1.3 the Customer is given sole authority to defend or settle the claim.
12.2 Subject always to clauses 12.4 and clause 13, the Supplier shall defend the Customer against any claim that the Services as at the Commencement Date, infringes any United Kingdom patent , copyright, trade mark, database right or right of confidentiality , and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1 the Supplier is given prompt notice of any such claim;
12.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
12.2.3 the Supplier is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Contract on 5 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1 a modification of the Services by anyone other than the Supplier;
12.4.2 the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
12.4.3 the Customer's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13 Limitation of liability
13.1 This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
13.1.1 arising under or in connection with this Contract;
13.1.2 in respect of any use made by the Customer of the Services, or any Bespoke Development Work Services and/or the Goods; and
13.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
13.2 Except as expressly and specifically provided in this Contract:
13.2.1 The Customer assumes sole responsibility for results obtained from the use of the Services and any Bespoke Development Work Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services or Bespoke Development Work Services, or any actions taken by the Supplier at the Customer's direction;
13.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract.
13.3 Nothing in this Contract excludes the liability of the Supplier:
13.3.1 for death or personal injury caused by the Supplier's negligence;
13.3.2 for fraud or fraudulent misrepresentation;
13.3.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession ) or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession ); or
13.3.4 any other liability which may not be excluded by law.
13.4 Subject to clause 13.2 and clause 13.3:
13.4.1 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 Contract; and
13.4.2 the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to twice the total fees paid by the Customer to the Supplier in the 12 months immediately preceding the date of any claim.
14 Term and termination
14.1 This Contract shall, unless otherwise terminated as provided in this clause 14, commence on the Commencement Date and shall continue from the Commencement Date for the Initial Subscription Term and, thereafter, this Contact shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
14.1.1 either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
14.1.2 otherwise terminated in accordance with the provisions of this Contract;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
14.2.1 the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.2.2 the other party commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.2.3 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;
14.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.5 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;
14.2.6 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;
14.2.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.2.8 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;
14.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such proc