ServedUp - Agreement for the supply of goods and services
Version dated: July 2022
(each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties).
The parties agree:
1. Definitions and interpretation
1.1. In this Agreement:
Business Day means a day other than a Saturday, Sunday or bank or public holiday in England or France where applicable;
Commencement Date means the date of this Agreement;
Confidential Information means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organisation associated with that party;
Customer Data means all information provided by the Customer or any User to the Supplier when using the Service;
Documentation means the documents (in whatever media) provided to the Customer to facilitate use of the Goods or the Service by Users;
Fee means the fees for the Services referred to in clause 6 and set out in the fee quote provided to the Customer.
Force Majeure means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion, natural disasters or industrial action;
Goods means any hardware ordered by the Customer;
Infringing Data means information or data that (i) infringes applicable law; or (ii) infringes any third party Intellectual Property Rights; or (iii) includes any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous;
Intellectual Property Rights means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
Price means the price payable for any Goods and Services;
Service(s) means the provision of the Software Services as agreed between the parties together with any other services provided by the Supplier to the Customer in accordance with the terms and conditions set forth hereunder, such as training and maintenance;
Service Hours means the service hours set forth in the SLA;
Software Services means the software or applications provided by the Supplier;
Users means the users that are authorised by the Customer to use the Software Services;
Warranty Period means, in respect of any Goods, as set forth in the SLA, as updated or amended from time to time; and
Year means each successive period of 12 months beginning on the Commencement Date.
2. Service and availability
2.1. The Customer shall be deemed to have agreed in full to the terms and conditions set forth herein by accepting any Services from the Supplier. In the event that the Customer does not agree to the terms of this Agreement, the Customer must immediately cease using the Services. 2.2. The Customer acknowledges and agrees that by entering into the terms and conditions set forth herein, the Customer appoints the Supplier as its agent for the purposes of accepting payments from Users, subject always to the provisions of clauses 5.3 to 5.5 inclusive. 2.3. The Supplier shall make the Software Services available to Customer during the Service Hours, excluding;
2.3.1. emergency maintenance or planned maintenance; or 2.3.2. downtime caused in whole or part by Force Majeure,
provided that the Supplier shall have no responsibility nor liability for installation on local networks or servers of the Customer. 2.4. The Supplier will use reasonable endeavours to notify the Customer in advance of scheduled maintenance to the Software Services but the Customer acknowledges that it may receive no advance notification for emergency maintenance or downtime caused by Force Majeure. 2.5. The Supplier shall use reasonable endeavours to ensure that any modification to the features and functionality of the Software Services does not adversely affect the Customer’s use of the Software Services. 2.6. The Supplier may request such “know your client” information and documentation in accordance with its then prevailing KYC and Anti Money Laundering policies before any Goods or Services are provided to the Customer pursuant to the terms and conditions set forth herein. Such information shall be provided by the Customer in the format specified or accepted by the Supplier.
3. Supplier warranties
3.1. The Supplier warrants to the Customer that the Goods and/or Services will, as applicable, be supplied:
3.1.1. with reasonable care and skill; and 3.1.2. subject to clauses 2.3 and 2.4 , in accordance in all material respects with the description of the Service provided in the Documentation.
3.2. The Supplier does not warrant or represent that the Service will be free from errors and interruptions or that the Goods will be free of defects, save that any Goods will be free from defects in material workmanship throughout the Warranty Period. 3.3. The Supplier offers no warranty of any kind in respect of any Goods not manufactured by the Supplier. The Supplier shall make all reasonable efforts, without accepting liability on itself, to ensure that the Customer benefits from any manufacturer warranty available for the duration of any applicable warranty period. Further details of manufacturer warranties are available on request. 3.4. The warranties in this clause are subject to the Customer giving notice to the Supplier as soon as it is reasonably able upon becoming aware of the breach of warranty. When notifying the Supplier of a breach the Customer shall use its reasonable endeavours to provide the Supplier with such documented information, details and assistance as the Supplier may reasonably request. 3.5. The Supplier will not be liable under this clause or be required to remedy any problem arising from or caused by the Customer’s use of the Goods and/or Services in a manner other than as directed by the Supplier. 3.6. The Customer acknowledges and agrees that:
3.6.1. the Supplier is not and cannot be aware of the extent of any potential loss resulting from any failure by the Supplier to discharge its obligations under this Agreement; 3.6.2. neither the Goods nor the Services have been designed to meet the Customer’s individual requirements and can not be tested in every operating environment; 3.6.3. it is the Customer’s responsibility to ensure the facilities and functions of the Goods and/or the Services meet the Customer’s requirements and will not cause any error or interruption in the Customer’s own network, environment or systems; 3.6.4. as between the parties, the Customer shall have sole liability for its use of third-party operating systems, third-party software, third party service providers; and/or third-party equipment (including the Customer’s use of older, amended, incompatible and obsolete versions of third-party software and equipment), and the Customer shall have no claim nor recourse against the Supplier for any losses or effects connected to or arising out of the Supplier’s use of the Goods or Services in this regard; and 3.6.5. as between the parties, the Customer shall bear any costs and losses (including “chargebacks”) resulting from the acts or omissions of any User or any other third party arising out of or in connection with the Customer’s use of the Goods and/or Services (provided that the Supplier shall make all reasonable efforts to assist the Customer recovering any such losses).
4. Customer Warranties
4.1. The Customer has all necessary permits, licenses and consents in full force and effect necessary to trade in the Customer’s business, and is at all times in full compliance with any obligations relating to such permits, licenses and consents. 4.2. The Customer maintains insurance policies in relation its business and such policies are in full force and effect and of an adequate value as would be reasonable in its industry. The Customer has neither defaulted under these insurance policies, whether as a result of failure to pay premiums or due to any other cause, nor has the Customer failed to give notice or make a claim under these insurance policies in a timely manner.
5. Use of the Software Services
5.7.1. copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Software Services; 5.7.2. use the Service to provide outsourced services to third parties or make it available to any third party or allow or permit a third party to do so without the Supplier’s prior written permission; 5.7.3. combine, merge or otherwise permit the Service (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it; 5.7.4. attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the Service, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and 5.7.5. to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Service, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.
5.8. The Customer shall not be permitted to frame or mirror any part of the Software Services other than as permitted by the Documentation or with the Supplier’s express written consent.
6. Suspension of access to the Software Services
6.1. The Supplier may suspend or block access to the Software Services to all or some of the Users if
6.1.1. the Supplier suspects that there has been any unauthorised use or misuse of the Software Services or breach of this Agreement or the Documentation by the Customer or Users; 6.1.2. the Customer fails to pay any sums due to the Supplier for any Goods and/or Services by the due date for payment; or 6.1.3. the Customer or Customer's staff or contractors verbally or physically intimidate, threaten or assault the Supplier's staff or contractors.
6.2. The Supplier will notify the Customer or the affected Users as soon as possible after suspending the Software Services. If the Supplier considers it appropriate to permanently suspend access to all Users, it will notify the Customer in writing and this Agreement will terminate immediately on service of such notice. 6.3. Fees shall remain payable during any period of suspension notwithstanding that the Customer or some of the Users may not have access to the Software Services.
7. Title and risk to Goods
7.1. The title to the Goods shall pass to the Customer on payment in full of the Price and any other sums that may then be due under this Agreement. The Supplier reserves the right to take possession of any Goods for which the Price has been not paid for in full by the due date. 7.2. Risk in the Goods shall pass to the Customer on delivery. If any part of the Goods shall thereafter be lost, destroyed or damaged the Supplier shall promptly replace the same subject to the Customer paying the cost of such replacement. Accordingly the Customer shall be responsible for insuring the Goods against all normal risks with effect from the time risk passes.
8. Information and access
8.1. The Customer undertakes to provide the Supplier promptly with any information that the Supplier may reasonably require from time to time to enable the Supplier to proceed uninterruptedly with the performance of this Agreement. The Customer represents and warrants that all such information is complete and correct in all material respects, and the Customer shall fully indemnify the Supplier against any losses or claims against the Supplier in the event that any such information is incorrect or incomplete, causing losses or delays to the Customer or the Supplier. 8.2. The customer shall provide access to details the business and its owners and/or directors to conduct mandatory checks as per the statutory requirements and for enhanced security. 8.3. The Customer shall for the purposes of this Agreement allow to the authorised personnel of the Supplier during normal working hours full and safe access to the Customer’s premises and shall provide adequate free working space and such other facilities as may be necessary for the installation or maintenance of the Goods and any ancillary products. 8.4. The Customer shall allow remote access to their network/ server by installing either: (i) tools provided by the Supplier; or (ii) the Customer’s own tools.
9. Onboarding and Training
9.1. The Supplier undertakes to provide training in the use of the Goods and Services for the Users as agreed in writing between the parties. 9.2. Any additional training required by the Customer shall be provided by the Supplier in accordance with its standard scale of charges from time to time in force. 9.3. Training will be provided through written documentation unless otherwise agreed in writing between the Supplier and the Customer. 9.4. Customer support can be contacted in the event that any issues arise that were not sufficiently covered in the training videos.
10.1. In the event that the Customer requires maintenance services in respect of the Goods as part of this Agreement, the commercial terms shall be set forth in writing between the parties.
11. Cancellation of Orders for Goods and Reductions to Equipment and Services
11.1. If the Customer wishes to cancel this Agreement in respect of all or any part of the Goods (other than for any breach of this Agreement by the Supplier as would entitle the Customer to terminate) then the Customer shall be entitled so to do at any time up to 14 days after the delivery date upon giving written notice to the Supplier, and upon paying to the Supplier the following sums:
11.1.1. the full price for any Goods ordered from third-parties for which the Supplier is unable to obtain a refund; 11.1.2. any fees, costs and expenses incurred by the Supplier on the Customer’s behalf as a result of such cancellation; and 11.1.3. a fair and reasonable sum on a time and materials basis for the Supplier’s work in fulfilling the order up to the date of cancellation.
11.2. In the event that the Customer wishes to effect any reduction in the Goods and Services received, the Customer shall provide written notice of its intention to do so to the Supplier. Following receipt of such notice, the Supplier may carry out a site visit at the Customer’s premises in order to assess the reduction required. Following such site visit the Customer and the Supplier shall agree in good faith a timeline and practical steps required to effect the reduction, and any reduction in the Fees payable. The Customer agrees to remunerate the Supplier for its site visit and assessment at the then applicable rate for any time and materials utilised by the Supplier. 11.3. Where the Customer removes or reduces any part of the Goods or Services without informing the Supplier, the Supplier shall have no liability for any such removal or reduction, and the Supplier shall not be obliged to revise any Fees payable until such time as the Supplier has carried out the site visit and assessment referred to herein above and agreed any and all changes to the Goods or Services. 11.4. For the avoidance of doubt and notwithstanding the forgoing, under no circumstances shall any delay in the provision of Goods or Services hereunder constitute grounds for cancellation or reduction to any order made pursuant to this Agreement where such delay was caused by or related to any one or more acts or omissions of the Customer.
12. Fees and Prices
12.1. The Customer shall pay the Supplier the specified Fee in accordance with the Supplier’s then current rate card for use of the Goods and Services. 12.2. The Supplier shall have the right to change any Fees at any time upon two (2) months’ prior written notice to the Customer. The Customer may during such two (2) months’ notice period give the Supplier written notice to:
12.2.1. terminate this Agreement with immediate effect; or 12.2.2. vary this Agreement to continue using the Goods and Services in relation to which the Fees were not changed, in which case such variation shall apply with immediate effect, and if the Customer does not serve any such notice before the end of the two (2) months' notice period, the Customer will be deemed to have accepted the Fee change, such that the Customer’s rights under this clause shall be null and void and the Supplier shall be entitled to charge the Fees (as changed) on and from the expiry of such notice period.
12.3. The Customer acknowledges and agrees that the provisions of clause 12.2 including in respect of the notice period and the Customer termination right shall not apply where there is a change to the Fees (including the introduction of any new Fee) applied by virtue of third party fees and costs that apply to the Goods or Services, such as card scheme fees, interchange fees and hardware costs, but only to the extent of and to reflect such change. 12.4. Any other agreed sums payable for Goods and/or Services shall be agreed in writing between the parties. 12.5. In the event that the Customer desires additional Goods and/or Services, or if additional Goods and/or Services are required due to any fault or act or omission of the Customer, the Supplier shall charge and the Customer agrees to pay the Supplier’s then standard charge rates on a time and materials basis. 12.6. Where the Supplier is required to carry out any installation services in order for the Customer to benefit from the Services hereunder, the Supplier shall be entitled to charge the Customer for such services by reference to the Supplier’s then standard charge rates on a time and materials basis. In the event that the Customer’s facility is not suitably prepared for such installation, the Customer shall pay the Supplier’s standard charges for any additional preparatory work required.
13.1. The Customer shall comply with the payment terms set forth in any Schedule or any quotation or invoice supplied by the Supplier, as applicable. 13.2. In the event of unpaid or overdue invoices, the Supplier reserves the right to charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, and/or to refer the invoice to a debt collection agent, in which case any commissions or fees charged by such agent shall be added to the outstanding debt.
14. Supplier Intellectual Property Rights
14.1. All Intellectual Property Rights in and to the Software Services, Documentation, any part of the Service (as applicable) belong to and shall remain vested in the Supplier. To the extent that the Customer acquires any Intellectual Property Rights in the Services or Documentation, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to the Supplier. The Customer shall execute all such documents and do such things as the Supplier may consider necessary to give effect to this clause. 14.2. The Supplier shall indemnify the Customer from and against all losses which are suffered by the Customer in the event that its use of the Service infringes the Intellectual Property Rights of any third party (Supplier IPR Claim) provided that the Supplier shall have no such liability if the Customer:
14.2.1. has caused or contributed in any material way to the Supplier IPR Claim by not using the Service in accordance with this Agreement or the Documentation; 14.2.2. does not notify the Supplier in writing setting out full details of any Supplier IPR Claim of which it has notice as soon as is reasonably possible; 14.2.3. makes any admission of liability or agrees any settlement or compromise of the relevant Supplier IPR Claim without the prior written consent of the Supplier; 14.2.4. does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Supplier IPR Claim; or 14.2.5. does not, at the Supplier’s request and own expense, give the Supplier all reasonable assistance in the circumstances described above.
15. Customer Data
15.1. The Customer represents and warrants that it shall not use Infringing Data on the Service. 15.2. The Customer grants a royalty-free, non-transferable, non-exclusive licence for the term of this Agreement to the Supplier to use the Customer Data to the extent necessary to perform the Service. 15.3. The Customer acknowledges that the Supplier has no control over any Customer Data hosted as part of the provision of the Service and does not actively monitor the content of the Customer Data on an individual basis. 15.4. The Customer acknowledges that the Supplier may utilise anonymised Customer Data and data generated by Users use of the Software Services for aggregation and the creation of metrics in order to further develop the Services. 15.5. The Supplier shall notify the Customer immediately if it becomes aware of any allegation that any Customer Data may be Infringing Data and the Supplier shall have the right to remove Customer Data from the Service without the need to consult the Customer. 15.6. The Customer shall indemnify the Supplier from and against all loss caused to the Supplier as a result of the Customer’s use of Infringing Data on the Service.
16. Information security
16.1. The Supplier shall be responsible for taking reasonable and prudent measures to safeguard the security of the Customer Data in its possession, including maintaining appropriate firewalls, encryption and anti-virus protection, and in compliance with the Suppliers obligations with the GDPR (as defined in clause 17 below). 16.2. The Supplier shall not be responsible for any loss or damage to Customer Data to the extent that such loss or damage was caused by the Customer or a third party (other than a subcontractor or representative of the Supplier).
17. Data protection
17.1. Each party agrees that, in the performance of its respective obligations under this Agreement, it shall comply with the provisions of the Data Protection Act 2018 (2018 Act) and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR) to the extent that such applies to each of them. 17.2. For the purpose of this clause ‘data controller’, ‘data processor’, ‘data subject’, ‘Information Commissioner’, ‘personal data’ and ‘processing’ shall have the meanings given to them in the 2018 Act or the GDPR, whichever is applicable. 17.3. The parties agree that the Customer is the data controller in respect of any personal data that the Supplier processes in the course of providing services for the Customer (other than business contact data processed by the Supplier to allow it to manage the Customer’s account, in which case the Supplier shall be the data controller), and that the Supplier is the data processor. 17.4. Accordingly, the Supplier agrees that it shall:
17.4.1. only carry out processing of the Customer’s personal data on the Customer’s instructions from time to time, such instructions at the date of this Agreement are to process the personal data in order to provide the Service and to enable the operation of the Software Services by Users as part of their normal use of the Software Services, and always in accordance with the Suppliers obligations under the 2018 Act and the GDPR; 17.4.2. implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and accidental destruction or loss, so as to allow the Customer to comply with its obligations under the 2018 Act and the GDPR, as applicable; 17.4.3. as soon as reasonably practicable refer to the Customer any requests, notices or other communication from data subjects, the Information Commissioner or any other law enforcement authority, for the Customer to resolve; 17.4.4. notify the Customer if the 2018 Act or the GDPR requires the Supplier to process personal data otherwise than in accordance with the Customer’s instructions (unless the applicable law prohibits such information on important grounds of public interest); 17.4.5. in respect of any personal data breach, without undue delay, notify the Customer of the breach and provide the Customer with details of such breach; 17.4.6. at the Customer’s written request, either delete or return all the Customer’s personal data to the Customer in electronic form within a reasonable time after the earlier of: (i) the end of the provision of the Software Services related to processing, or (ii) once processing by the Supplier of any of the Customer’s personal data is no longer required for the purpose of the Supplier’s performance of its relevant obligations under this Agreement, following which Supplier shall delete existing copies (unless storage of any data is required by the 2018 Act or the GDPR and, if so, the Supplier shall inform the Customer of any such requirement); 17.4.7. promptly inform the Customer if the Supplier becomes aware of any processing instruction that, in the Supplier’s opinion, infringes the 2018 Act and the GDPR.
17.5. The Customer warrants, represents and undertakes, that:
17.5.1. all data sourced by the Customer for use in connection with the Software Services shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, data subjects), with the 2018 Act and the GDPR; and 17.5.2. all instructions given by it to the Supplier in respect of personal data shall at all times be in accordance with the 2018 Act and the GDPR.
17.6. The Supplier shall:
17.6.1. not permit any processing of personal data by any agent, subcontractor or other third party (except its or its subcontractor’s own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to any personal data) without notifying the Customer (which shall be deemed given as regards current subcontractors at the Commencement Date); 17.6.2. prior to the relevant subcontractor carrying out any processing activities in respect of any personal data, appoint each subcontractor under a written contract containing materially the same obligations as under this clause that is enforceable by the Supplier and ensure each such subcontractor complies with all such obligations; 17.6.3. remain fully liable to the Customer under this Agreement for all the acts and omissions of each subcontractor as if they were its own; and 17.6.4. ensure that all persons authorised by the Supplier or any subcontractor to process personal data are subject to a binding written contractual obligation to keep any personal data confidential.
17.7. The Supplier shall maintain, in accordance with the provisions of the 2018 Act and the GDPR binding on the Supplier, written records of all categories of processing activities carried out on behalf of the Customer. 17.8. The Supplier shall not, without ensuring adequate safeguards are in place, transfer personal data that it processes on the Customer’s behalf to countries outside the UK or the European Economic Area.
18.1. Each party agrees that it may use the other party’s Confidential Information only in the performance of its rights and obligations under this Agreement and that it shall not disclose the other party’s confidential information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 18. 18.2. Each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s confidential information in order to perform the disclosing party’s rights and obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this clause 18 as if it were a party. 18.3. Each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
19. Limitation of liability
19.1. The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 19 . 19.2. Subject to clause 19.6 , the Supplier’s total liability shall not exceed:
19.2.1. an amount equal to the total Fees paid to the Supplier in the 12–month period immediately preceding the first incident giving rise to the loss, or 19.2.2. for incidents occurring in the first 12 months of this Agreement, an amount equal to the paid and projected total Fees for that period.
19.3. Subject to clause 19.6 , the Supplier shall not be liable for consequential, indirect or special losses. 19.4. Subject to clause 19.6 , the Supplier shall not be liable for any of the following (whether direct or indirect):
19.4.1. loss of profit; 19.4.2. loss of data; 19.4.3. loss of use; 19.4.4. loss of production; 19.4.5. loss of contract; 19.4.6. loss of opportunity; 19.4.7. loss of savings, discount or rebate (whether actual or anticipated); 19.4.8. harm to reputation or loss of goodwill; 19.4.9. the fraudulent activity of any User; 19.4.10. any act or omission of any third party outside the control of the Supplier unless explicitly stated to the contrary herein.
19.5. Except as expressly stated in this Agreement, and subject to clause 19.6 , all warranties and conditions, including those relating to the condition quality performance merchantability durability or fitness for purpose of the Goods, whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law. 19.6. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
19.6.1. death or personal injury caused by negligence; 19.6.2. fraud or fraudulent misrepresentation; 19.6.3. any other losses which cannot be excluded or limited by applicable law.
20. Term and termination
20.1. This Agreement will begin on the Commencement Date and, unless terminated earlier in accordance with the provisions of this Agreement, continue until terminated in accordance with the provisions set forth herein. 20.2. The Software Services and any part of the Services that includes maintenance or support shall be subject to successive terms of one year from the Commencement Date (“the Anniversary Date”), which shall automatically renew on an annual basis without notice. The Contract may be terminated by either party giving to the other not less than 3 months notice in writing, to expire on the Anniversary Date. No other termination of the Software Services or any part of the Services that includes maintenance or support shall be permitted, and the Fees set forth in this Agreement shall become due and payable following any automatic annual renewal. 20.3. The Supplier may terminate this Agreement at any time by giving notice in writing to the Customer if:
20.3.1. the Customer or any User commits a material breach of this Agreement and such breach is not remediable; 20.3.2. the Customer or any User commits a material breach of this Agreement which is not remedied within 15 days of receiving written notice of such breach; 20.3.3. the Customer has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 15 days after the Customer has received notification that the payment is overdue; 20.3.4. any consent, licence or authorisation held by the Customer is revoked or modified such that it is no longer able to comply with its obligations under this Agreement or access and use the Service; or 20.3.5. the Customer or Customer's staff or contractors verbally or physically intimidate, threaten or assault the Suppliers' staff or contractors.
20.4. Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:
20.4.1. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case; 20.4.2. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986; 20.4.3. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; 20.4.4. has a resolution passed for its winding up; 20.4.5. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; 20.4.6. is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [seven] days of that procedure being commenced; 20.4.7. has a freezing order made against it; 20.4.8. is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; 20.4.9. is subject to any events or circumstances analogous to those in clauses 20.4.1 to 20.4.8 in any jurisdiction; 20.4.10. takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 20.4.1 to 20.4.9 .
20.5. The right of a party to terminate the Agreement pursuant to clause 20.4 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement. 20.6. Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination. 20.7. For the avoidance of doubt, under no circumstances shall any delay in the provision of Goods or Services hereunder constitute grounds for termination of the Agreement by the Customer where such delay was caused by or related to any one or more acts or omissions of the Customer. 20.8. In the event that the Customer takes any action that has the effect of terminating this Agreement before the termination date permitted in accordance with the terms and conditions set forth herein, the Customer shall be liable to the Supplier (as a debt immediately due and payable with time being of the essence) for an amount equal to the Fees that would have been due to the Supplier had the Customer terminated this Agreement at the earliest termination date permitted in accordance with the terms and conditions set forth herein. In the event that this sum cannot be precisely ascertained for any reason, the parties agree that the Fees due in accordance with the provisions of this clause shall be calculated by reference to the average monthly Fees paid by the Customer in the 12 months before the event that gave rise to the Supplier’s remedy hereunder. 20.9. In the event that, following the elapse or termination of this Agreement for any reason, the Customer fails to return any Goods to the Supplier by the deadline notified to the Customer in writing from the Supplier, the Supplier shall be permitted to set-off or deduct the replacement value of those Goods from any amounts owed by the Supplier to the Customer. The Supplier may retain such sums pending the return of the relevant Goods by the Customer to the Supplier in good working order.
21. Exit and return of Customer Data
21.1. In the event of termination of this Agreement for any reason:
21.1.1. the right to access the Software Services provided under this Agreement shall terminate immediately; 21.1.2. the Customer shall within seven days return or destroy (at the Supplier’s option) all the Supplier’s Confidential Information or Documentation in its possession or under its control and all copies of such information; and 21.1.3. all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
21.2. On the termination or expiry of this Agreement, the Supplier shall return in electronic form or destroy (at the Customer’s option) all Customer Data within a reasonable time period.
22. Entire agreement
22.1. The parties agree that this Agreement and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. 22.2. Each party acknowledges that it has not entered into this Agreement or any documents entered pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
23. No partnership or agency
23.1. The parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
24.1. Notices under this Agreement shall be in writing and sent to a party's address as set out on the first page of this Agreement (or to the email address notified from one party to the other). Notices may be given, and shall be deemed received:
24.1.1. by first-class post: two Business Days after posting; 24.1.2. by airmail: seven Business Days after posting; 24.1.3. by hand: on delivery; and 24.1.4. by email on receipt of a read receipt.
24.2. This clause does not apply to notices given in legal proceedings or arbitration.
25. Third party rights
25.1. Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
26.1. The Customer grants the Supplier a worldwide royalty free non-exclusive licence to use the Customer’s name and logo in any of the Supplier’s marketing materials. The Customer shall also permit the Supplier to take photographic images at the Customer’s premises and publish such images, provided that none of the Customer’s workers, employees, consultants or contractors will be identifiable in any such images.
27. Governing law
27.1. This Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
28.1. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
29. ADDITIONAL TERMS
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