1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees and independent contractors of the Client who are entitled to use the Software through the Server under this agreement, as further described in clause 4.2 and in the Specification.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
Client Data: the data inputted into the information fields of the Software by the Client, by Authorised Users, or by the Supplier on the Client’s behalf.
Client Software: the software owned by or licensed (otherwise than pursuant to this agreement) to the Client, as described in the Specification.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clauses 14.5 and 14.6.
Configuration Services: the configuration and related work referred to in clause 3 to be performed by the Supplier to configure the Software in accordance with the Specification.
Contract Year: any 12 month period ending on the anniversary of the Commencement Date.
Deliverable: a defined level of functionality or other preset milestone forming part of the Configuration Services, as more particularly described in the Specification.
Fees: the fees payable to the Supplier, as described in the Specification and/or the Hosted Services Agreement..
Hosting Services: the services that the Supplier provides to allow Authorised Users to access and use the Software via the Server, including hosting set-up and ongoing services, as described in clause 4 and the Specification.
Licences: the Supplier Software Licence and the Third Party Software Licence for the Software described in the Specification.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day between 2nd January and 23rd December and 9.30 am to 1.00 pm local UK time, each Business Day between 24th December and 1st January (inclusive).
Revised Fees: the level of the Fees after revision by the Supplier pursuant to clause 11.4.
Server: the hosting equipment used by the Supplier to provide the Services as more particularly described in the Specification.
Service Level Arrangements: the service level arrangements as set out in clause 17 and in the Specification.
Services: the Configuration Services, Hosting Services and/or Software Support Services, as applicable and as described in the Specification.
Software: the Supplier Software, the Client Software and the Third Party Software to be made available to the Client via the Server.
Software Specification: the functionality and performance specifications for the Software, as set out in the Specification.
Software Support Agreement: the agreement pursuant to which the Supplier is to provide the Software Support Services to the Client.
Software Support Services: any technical support services to be provided to the Client by the Supplier in relation to the Software, as described in the Specification and on the terms set out in the Software Support Agreement.
Specification: the agreed details of the services to be provided by the Supplier pursuant to this agreement, as set out in the Specification appended to the agreement and as amended by the parties from time to time.
Supplier Software: the Supplier’s proprietary software in machine readable object code found only, to be licensed to the Client pursuant to the Supplier Software Licence, described in the Specification.
Supplier Software Licence: the Software Licence Agreement to be entered into and which will form part of this agreement in relation to the Supplier Software.
Third Party Software: the software to be licensed to the Client pursuant to the Third Party Software Licence, as described in the Specification.
Third Party Software Licence: the end user licence terms relating to the Third Party Software, together with any alterations thereto made by the licensor of the Third Party Software.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 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) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 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 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.
1.8 A reference to writing or written includes faxes and e-mails.
2.1 The Supplier shall supply and the Client shall take and pay for the Services and the licences (if any), as stated in this agreement.
2.2 The Supplier reserves the right to make any changes in the Specification of the Services or the Software which are required to conform with any applicable statutory or EU requirements or, where the Services are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance.
3. CONFIGURATION SERVICES
3.1 The Supplier shall perform the Configuration Services in accordance with the Specification. The Supplier shall use reasonable endeavours to meet any performance dates set out in the Specification, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.
3.2 Upon completion of the Configuration Services in respect of a Deliverable, the Client shall be able to access that Deliverable online. Within five days of the Supplier’s notifying the Client that it has completed the configuration services in respect of a Deliverable, the Client shall review that Deliverable to confirm that it functions in material conformance with the applicable portion of the Specification. If the Deliverable fails in any material respect to conform with the applicable portion of the Specification, the Client shall give the Supplier a detailed description of any such non-conformance (Error), in writing, within the five-day review period.
3.3 The Supplier shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Deliverable to the Client.
3.4 If the Client does not provide any written comments in the five-day period described above, or if the Deliverable is found to conform with the Specification, the Deliverable shall be deemed accepted.
3.5 In the event that the Supplier is unable to correct an Error (without incurring significant further costs), then the Supplier may give notice in writing to the Client that it is unable to complete the Configuration Services in respect of that particular Deliverable and give the reason why. If the reason is due to Client Software, the Client’s internet connection or hardware or any instruction, act or omission of the Client, then the Supplier shall be entitled to such proportion of the Fees as relate to the Configuration Services for the relevant Deliverable. Otherwise, each party shall be released from any further obligation under this agreement in respect of the relevant Deliverable. The agreement shall continue in respect of all other Deliverables and the Supplier shall be entitled to the Fees relating thereto.
4. HOSTING SERVICES
4.1 The Supplier shall perform the Hosting Services.
4.2 In relation to Authorised Users:
(a) the Client’s access to the Server shall be limited to such number of individual Authorised Users, being employees or independent contractors of the Client, as stated in the Specification;
(b) the Client shall maintain a written list of current Authorised Users, and the Client shall provide such list to the Supplier as may be reasonably requested by the Supplier from time to time;
(c) the Client shall ensure that each Authorised User keeps a secure password for his access to the Software on the Server and that each Authorised User keeps his password confidential;
(d) the Supplier may audit the name and password for each Authorised User; and
(e) if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to the Supplier’s other rights, the Client shall promptly disable such passwords and shall not issue any new passwords to such individuals.
4.3 The Client shall not:
(i) transfer, temporarily or permanently, any of its rights under this agreement, or
(ii) attempt to obtain, or assist third parties in obtaining, access to the Software or the Server; and
(b) the Client shall use reasonable endeavours to prevent any authorised access to, or use of, the Server and/or the Software and notify the Supplier promptly of any such unauthorised access or use.
4.4 The Client shall not store, distribute or transmit any Viruses, or any material through the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
4.5 The Service Level Arrangements shall apply with effect from the start of the month after the Configuration Services have been satisfactorily completed.
4.6 It shall be the Client’s responsibility to ensure that the Authorised Users have suitable internet access in order for them to access the Software.
5. SUPPLIER AND THIRD PARTY SOFTWARE
5.1 In consideration of the Fees, the Supplier shall grant to the Client a non-exclusive non-transferrable licence to:
(a) use the Supplier Software on and subject to the terms and conditions of the relevant Supplier Software Licence; and
(b) use the Third Party Software on and subject to the terms and conditions of the relevant Third Party Software Licence.
5.2 The Client agrees to abide at all times with the terms and conditions of each Supplier Software Licence and Third Party Software Licence.
6. TECHNICAL SUPPORT SERVICES
6.1 The Supplier shall provide technical support in relation to the Client’s access to the Software via the Server during Normal Business Hours by telephone and by e-mail (or as set out in the Specification).
6.2 If applicable, the Supplier shall provide the Software Support Services in accordance with the Software Support Agreement.
6.3 Any request for additional training, support or other services shall be dealt with under the change control provisions set out in clause 12 below.
7. CLIENT DATA
7.1 The Client shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
7.2 Any Client Data uploaded to the Server (whether by the Supplier or otherwise) is done so at the Client’s own risk.
7.3 The Supplier shall perform scheduled back-ups of the Client Data. Unless detailed in the Specification, full weekly back-ups and daily incremental back-ups.
7.4 In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up).
7.5 If the Supplier processes any personal data on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Client warrants that the Client is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully process the personal data in accordance with this agreement on the Client’s behalf; and
(b) 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.
8. SUPPLIER’S OBLIGATIONS
8.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Specification and with reasonable skill and care.
8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier’s instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Software does not conform with the foregoing warranty, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, Supplier does not warrant that the Client’s access to the Server and the use of the Software will be uninterrupted or error-free.
8.3 The Supplier shall update and patch the Supplier Software and the Third Party Software as it deems necessary. Unless agreed otherwise in the Specification, the Supplier shall only update the Client Software at the request in writing of the Client.
9. CLIENT’S OBLIGATIONS
The Client shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to render the Services, including but not limited to Client Data, security access information and software interfaces to the Client’s other business applications;
(b) provide such personnel assistance as may be reasonably requested by the Supplier from time to time;
(c) appoint a Project Manager, who shall have the authority to contractually bind the Client on all matters relating to this agreement. The Client shall use reasonable endeavours to ensure continuity of the Project Manager;
(d) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(e) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner; and
(f) be responsible to the Supplier for ensuring the accuracy of the terms of the Specification and for giving the Supplier any necessary information relating to the Services or Software within a sufficient time to enable the Supplier to perform its obligations under this agreement in accordance with its terms.
10. ACCEPTABLE USAGE POLICY
10.1 The Client accepts and acknowledges that they have a responsibility to ensure that the Software and the Server are not used in an irresponsible manner. Activities deemed to be irresponsible by the Supplier include, but are not limited to, bulk unsolicited e-mailing (spamming), the hosting of fraudulent or ‘phishing’ sites or the use of the Software and/or the Server in an attempt to circumvent the security of third party machines and networks.
10.2 The Server must not be used for:
• the hosting of adult content;
• the transit of VPN tunnels where neither end of the tunnel terminates on the Server;
• the provision of services which route traffic through the Server in such a way as to disguise the true source of the traffic (e.g. anonymous proxy or VPN services);
• any open recursive DNS services;
• content delivery network services;
• connection to p2p or bittorrrent networks;
• running IRC servers;
• running proxy servers of any type;.
10.3 The Server may only be accessed by Authorised Users.
10.4 The Supplier reserves the right to suspend or cancel in whole or in part any of the Services which is affecting the ability of the Supplier or the Server to provide acceptable levels of service to other clients of the Supplier.
10.5 If the Supplier determines that either the Software or the Server is being used in breach of this clause 10, the Supplier shall have the right to suspend the Services and the Client’s access to the Server immediately and without prior notification. The Client will be informed of the suspension and if it has not acted to resolve the reported issue within 24 hours the Supplier shall have the right to terminate this agreement immediately.
11. FEES AND PAYMENT
11.1 The Client shall pay the Fees.
11.2 The Initial Fee shall be paid by the Client to the Supplier on or before the Commencement Date. Thereafter, unless the Specification states otherwise, Fees shall be payable monthly, 2 months in advance and the Client shall ensure that all payments are received by the Supplier by the end of the calendar month in which the invoice is raised.
11.3 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
11.4 The Supplier shall be entitled to vary the Fees:
(a) at any time to reflect any increase in the cost of the Third Party Software;
(b) at any time to reflect any change in the number of Authorised Users; or
(c) upon giving not less than three months’ notice to the Client.
11.5 The Supplier shall be entitled to make variations to the Fees pursuant to clause 11.4 (a) and (b) by giving notice in writing to the Client, detailing the increase in costs/Authorised Users. (For the avoidance of doubt any such variation may relate to additional costs or Authorised Users incurred/added prior to the date of the notice.
11.6 In the event that the Supplier gives notice pursuant to clause 11.4 (c) and the Client does not agree to the Revised Fees the Client shall be entitled to terminate this agreement by giving not less than two months’ notice in writing to the Supplier. If the Client terminates the agreement in accordance with this clause, during the notice period the Client shall pay to the Supplier the Fees payable by the Client to the Supplier immediately prior to the Revised Fees.
11.7 All sums due to the Supplier from the Client under this Contract shall be paid by the Client in cleared funds into the bank account nominated by the Supplier for such purpose from time to time.
11.8 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
(a) cancel the agreement or suspend any further Services to the Client;
(b) appropriate any payment made by the Client for any goods or services supplied under any other contract between the Client and the Supplier as the Supplier may think fit (notwithstanding any purported appropriation by the Client); and
(c) charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 5 per cent per annum above HSBC Bank Plc’s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
12. CHANGE CONTROL
12.1 If either party wishes to change the scope of the Services (including Client requests for additional Software to be made available via the Server or a change in the number of Authorised Users), it shall submit details of the requested change to the other in writing.
12.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Client of:
(a) any variations to the Fees arising from the change; and
(b) any other impact of the change on the terms of this agreement.
12.3 If the Supplier requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
12.4 If the Client wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its Fees and any other relevant terms of this agreement to take account of the change.
13. PROPRIETARY RIGHTS
13.1 The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Supplier Software and the Services. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Supplier Software, the Services, the Third Party Software or any related documentation.
13.2 The Supplier warrants that it has all the rights in relation to the Supplier Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
13.3 The Client warrants the Supplier that his has all the necessary rights, licences and consents to permit the Client Software to be made available and used by the Authorised Users via the Server and otherwise used in accordance with the terms of this agreement.
14.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party; or
(b) was in the other party’s lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
14.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
14.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
14.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
14.5 The Client acknowledges that the Supplier Software, the results of any performance tests of the Software and the Services constitute the Supplier’s Confidential Information.
14.6 The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
14.7 This clause 14 shall survive termination of this agreement, however arising.
The Client 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 Client’s use of the Software or Services or a breach of the warranties contained at clause 7.5 (a) in respect of the Client Data and at clause 13.3 in respect of the Client Software. .
16. LIMITATION OF LIABILITY
16.1 This clause 16 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 Client in respect of:
(a) any breach of this agreement;
(b) any use made by the Client of the Server, the Services, the Software 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.
16.2 Except as expressly and specifically provided in this agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Software and the Server by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information or instructions provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
16.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
16.4 The Service Level Arrangements state the Client’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Services and/or the Software, or their non-performance and non-availability.
16.5 Subject to clause 16.3 and clause 16.4:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) the 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 this agreement shall be limited to a sum equal to 125% of the Fees paid for the Services and Licences during the 12 months preceding the date on which the claim arose (or, in the case of the first year, 125% of the Fees payable during the first 12 months of this agreement).
17. SERVICE LEVEL ARRANGEMENTS
17.1 Maintenance of the Server and/or the Software may require interruption of the Hosting Services (Maintenance Events) from time to time. Any Maintenance Events which occur during Normal Business Hours, and which were not requested by the Client, shall be considered downtime for the purpose of service availability measurement. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
17.2 The Supplier shall use its reasonable endeavours to provide 99% uptime service availability (Uptime Service Level). This availability refers to access to the Server. The Client is responsible for its own internet access. Availability does not include Maintenance Events outside of Normal Business Hours, Client-caused or third party-caused outages or disruptions, or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 22 of the agreement.
17.3 Availability measurement shall be carried out by the Supplier and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. The Supplier shall keep and shall send to the Client, on request, full records of its availability measurement activities under this agreement.
17.4 If availability falls below the Uptime Service Level (as defined in paragraph 17.2 above) in a given calendar month (Service Delivery Failure), the Supplier shall credit the Client’s account by an amount calculated as the product of the total cumulative downtime (expressed as a percentage of the total possible uptime minutes in the month concerned) and the total Fees owed for that month (Service Credit).
17.5 A Service Credit shall not be payable unless the Client requests it within 20 Business Days of the service-affecting event(s). The maximum Service Credit allowable in a given month is limited to an amount equal to the total Fees owed by the Client for that month.
17.6 The Client acknowledges and agrees that the terms of this paragraph 17 relating to Service Credits constitute a genuine pre-estimate of the loss or damage that the Client would suffer as a result of the Supplier’s Service Delivery Failure and are not intended to operate as a penalty for the Supplier’s non-performance.
The term of this agreement shall commence on the Commencement Date (or if none is specified in the agreement, upon completion of the Configuration Services) and, subject to earlier termination pursuant to clauses 10, 11, 19 or 20, shall continue for the Initial Term. After expiry of the Initial Term, the agreement shall (subject to earlier termination pursuant to clauses 10, 11, 19 or 20) continue for successive Contract Years until terminated by either the Supplier or the Client giving at least 2 months prior written notice of termination to the other to expire at the end of the relevant Contract Year.
19. INSOLVENCY OF CLIENT
19.1 This clause applies if:
(a) the Client makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
(c) the Client ceases, or threatens to cease, to carry on business; or
(d) the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
19.2 If this clause applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to terminate this agreement or suspend any further Services under the agreement forthwith without any liability to the Client.
20.1 This agreement may be terminated:
(a) in accordance with clause 10 (Acceptable Usage Policy), clause 11 (Fees and Payment), clause 18 (Duration), clause 19 (Insolvency of Client) and clause 22 (Force Majeure); and
(b) forthwith by either party if the other commits any material breach of any term of these conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a request in writing to remedy the same.
20.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
21. CONSEQUENCES OF TERMINATION
On termination of this agreement for any reason:
(a) all licences granted pursuant to this agreement (including all and any Supplier Software Licence and/or Third Party Software Licence) shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
22. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for the delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 90 days, the party not affected may terminate this agreement by giving 30 days written notice to the other party.
23.1 A waiver of any right under this 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.
23.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
24.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
24.2 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.
25. ENTIRE AGREEMENT
25.1 This 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 the subject matter they cover.
25.2 Each of the parties acknowledges that, in entering into this agreement and the documents referred to in it has not relied and does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (Representation) of any person (whether party to this agreement or not) other than as expressly set out in this agreement or those documents.
25.3 Nothing in this clause shall limit or exclude any liability for fraud.
26.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
26.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
27. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
29. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
30.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement, or sent by email to the other party’s email address as set out in this agreement.
31. GOVERNING LAW AND JURISDICTION
31.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
31.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).