Cloud Commerce Pro SAAS Terms and Conditions

Cloud Commerce Pro

Cloud Commerce Pro Ltd is registered in England and Wales. Our registration details are:

CLOUD COMMERCE PRO LTD
MOORE AND SMALLEY LLP PRIORY CLOSE
ST MARYS GATE
LANCASTER
LANCASHIRE
LA1 1XB
Company No. 04918219
VAT No. GB 831 6197 28

Background

  1. The Supplier has developed a technology platform called Cloud Commerce Pro which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of enabling subscribers to list items for sale on online marketplaces, such as eBay, manage their inventory, billing and messaging and process their orders.
  2. By agreeing to these terms and conditions, the Customer expresses their wish to use the Supplier's service in its business operations.
  3. Upon receipt of the counter-signed Proposal and Service Agreement, the Supplier agrees to provide and the Customer agrees to take and pay for the Supplier's Service subject to these terms and conditions.
  1. Interpretation
    1. The definitions and rules of interpretation in this clause apply in these terms and conditions.
    2. Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3.

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

      Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

      Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.

      Connected Sales Channel: a selling website or marketplace (for example eBay) which is connected to the Service for the purposes of listing and selling goods.

      Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

      Data Controller: as defined in the Data Protection Legislation.

      Data Protection Legislation: (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

      Data Processor: as defined in the Data Protection Legislation.

      Data Subject: as defined in the Data Protection Legislation.

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

      Effective Date: the date of the Customer’s acceptance of these terms and conditions or the date of the Service Agreement whichever is the later.

      Implementation Services: the services provided by the Supplier to the Customer in order to configure, customise and / or extend the functionality of the Software for their use as set out in the Proposal and the relevant schedule of their Service Agreement.

      Initial Subscription Term: the initial term of these terms and conditions as set out in the Proposal and the relevant schedule of their Service Agreement.

      Normal Business Hours: 09.00 to 17.30 local UK time, each Business Day.

      Personal Data: as defined in the Data Protection Legislation.

      Proposal: The document supplied by the Supplier to the Customer which set out the nature of the Services to be delivered and the commercial terms relating to the supply of the Services.

      Process, Processing, Processed: each as defined in the Data Protection Legislation.

      Renewal Period: the period described in clause 14.1.

      Services: the subscription services provided by the Supplier to the Customer under these terms and conditions or Service Agreement via www.cloudcommercepro.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Proposal and the relevant schedule of their Service Agreement.

      Service Agreement: the agreement between the two parties which will be formed after the Customer’s acceptance of these terms and conditions.

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

      Special Category Data: as defined in the Data Protection Legislation.

      Subscription Fees: the subscription fees payable by the Customer to the Supplier for the services, as set out in the Proposal and the relevant schedule of their Service Agreement.

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

      Support Services Policy: the Supplier's policy for providing support in relation to the Services as provided to the Customer from time to time.

      Third-Party Processors: the sub-processors of the Supplier for the purposes of clause 6.

      Subscription Fees: the fees payable for the use of the Services.

      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.

    3. Clause, schedule and paragraph headings shall not affect the interpretation of these terms and conditions.
    4. 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.
    5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
    7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
    8. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms and conditions.
    9. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these terms and conditions under that statute or statutory provision.
    10. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
    11. A reference to writing or written includes faxes and e-mail.
    12. References to clauses and schedules are to the clauses and schedules of these terms and conditions; references to paragraphs are to paragraphs of the relevant schedule to these terms and conditions.
  2. Subscriptions
    1. Subject to the Customer paying their Subscriptions in accordance with the Proposal and the relevant schedule of their Service Agreement and clause 1, the restrictions set out in this clause 2 and the other terms and conditions of these terms and conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
    2. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. 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 any material that breaches the provisions of this clause.
    3. The Customer shall not:
      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 these terms and conditions:
        1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
        2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
      3. use the Services and/or Documentation to provide services to third parties; or
      4. subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
      5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.; and
    4. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
    5. The rights provided under this clause 2. are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
  3. Subscriptions
    1. The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these terms and conditions.
    2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
      1. planned maintenance carried out during the maintenance window of 18.00 and 06.00 local UK time; and
      2. unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 8 Normal Business Hours' notice in advance.
    3. The Supplier will, as part of the Services, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Customer Support Services Policy in effect at the time that the Services are provided.The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.
  4. Customer data
    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.
    2. The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, as such document may be amended by the Supplier in its sole discretion from time to time.In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy 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).
    3. In performing their obligations under these terms and conditions, the parties shall comply with clause 5.
  5. Data Protection
    1. Both parties will comply with all applicable requirements of the General Data Protection Regulations. This clause 5is in addition to, and does not relieve, remove and/or replace, a party's obligations under the Data Protection Legislation.
    2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Supplier is the Data Processor.
    3. Without prejudice to the generality of clause 1, the Customer has (and shall maintain throughout the Subscription Term of these terms and conditions and thereafter) all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier throughout the Subscription Term of these terms and conditions and thereafter for or in relation to the purposes of these terms and conditions.
    4. Without prejudice to the generality of clause 1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by Supplier of its obligations under these terms and conditions.
      1. Process that Personal Data only on the Customer’s written instructions unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to Process Personal Data (“Applicable Laws”). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for Processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the Processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
      2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the Personal Data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      3. ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential;
      4. not transfer any Personal Data outside of the European Economic Areaunless the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed) has been obtained and the following conditions are fulfilled (i) the Customer has or Supplier has provided appropriate safeguards in relation to the transfer, (ii) the Data Subject has enforceable rights and effective legal remedies (iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred, and (iv) complies with reasonable instructions notified to it in advance by the Customer with respect to the Processing of the Personal Data;
      5. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with the Customer’s obligations under the Data Protection Legislation including (but not limited to) with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      6. notify the Customer without undue delay on becoming aware of a Personal Data breach;
      7. at the Customer’s written direction, delete or return Personal Data and copies thereof to the Customer on expiry or termination of these terms and conditions unless required by Applicable Law to store the Personal Data; and
      8. maintain records and information to demonstrate its compliance with this clause.
    5. The Customer consents to the Supplier appointing the Third-Party Processors as a third-party Processor of Personal Data under these terms and conditions. The Supplier confirms that it has entered or (as the case may be) will enter with the Third-Party Processor into a written agreement. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any Third-Party Processor appointed by it pursuant to this clause.
    6. Either party may, at any time on not less than 30 days’ written notice, revise this clause by replacing it with any applicable Data Controller to Data Processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to these terms and conditions.
  6. Third party providers
  7. The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier.  The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website.  The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

  8. Supplier's obligations
    1. The Supplier shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
    2. The obligation at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.Notwithstanding the foregoing, the Supplier:
      1. does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
      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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    3. The Supplier will endeavour to complete theImplementation Services within 30 elapsed working days from the commencement of the delivery of those Services.
    4. These terms and conditions shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these terms and conditions.
    5. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms and conditions.
  9. Customer's obligations The Customer shall:
    1. provide the Supplier with:
      1. all necessary co-operation in relation to these terms and conditions; and
      2. all necessary access to other such information as may be required by the Supplier with the prescribed deadlines;
      in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
    2. comply with all milestones and deadlines pertaining to the delivery of the Implementation Services including but not limited to:
      1. facilitating account set up within 5 elapsed working days of commencement of the Implementation Project by:
        1. attending a welcome call or meeting,
        2. providing sales channel access credentials to facilitate the connection of the Service to Customer sales channels;
        3. providing courier credentials;
        4. providing Office 365 login credentials to facilitate their connection to the Service.
      2. providing all product data as requested by the Supplier within 15 elapsed working days of commencement of the delivery of the Implementation Services by:
        1. providing the Supplier with an export of their product inventory in the prescribed format;
        2. defining and documenting product SKU mapping in the prescribed format;
        3. identifying and documenting all product bundles;
        4. providing all additional product data including product weights dimensions and supplier information.
      3. facilitating the setup of product dispatch and shipping functionality within 17 elapsed working days of commencement of the delivery of the Implementation Services by:
        1. attending a shipping welcome call or meeting;
        2. providing all shipping courier account credentials;
        3. assisting the Supplier with the specification of shipping templates;
        4. defining desired shipping rules.
      4. facilitating the setup of any additional functionality within 23 elapsed working days from the commencement of the delivery of the Implementation Services by:
        1. assisting with the setup of warehouse management functionality;
        2. assisting with the setup of EPOS functionality;
        3. assisting with the setup of wholesale channels;
        4. assisting with the setup of barcode scanners.
      5. participating in user training within 30 elapsed days from the commencement of the delivery of the Implementation Services.
    3. incur additional set up fees or other financial penalties if they fail to comply with all milestones and deadlines pertaining to the delivery of the Implementation Services and / or if they fail to attend calls, meetings or training sessions at the scheduled time.
    4. comply with all applicable laws and regulations with respect to its activities under these terms and conditions;
    5. carry out all other Customer responsibilities set out in these terms and conditions 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, delivery schedule and /or cost as reasonably necessary;
    6. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these terms and conditions and shall be responsible for any Authorised User's breach of these terms and conditions;
    7. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these terms and conditions, including without limitation the Services
    8. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
    9. 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.
    10. Comply with all other obligations set out in the relevant schedules to their Service Agreement.
  10. Charges and payment
    1. The Customer shall pay the Subscription Fees to the Supplier for the Service Subscriptions in accordance with this clause 9, their signed Proposal and the relevant schedule of their Service Agreement.
    2. The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
      1. its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
        1. on the Effective Date for the Subscription Fees payable in respect of the first month or part thereof; and
        2. on the anniversary of the Effective Date each month thereafter up to and including the next calendar month following the end of the Initial Subscription Term or Renewal Period for the Subscription Fees payable in respect of the prior month or part thereof subject to clause 14.1;
      2. its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
        1. on the Effective Date for the Subscription Fees payable in respect of the first month or part thereof; and
        2. on the anniversary of the Effective Date each month thereafter up to and including the next calendar month following the end of the Initial Subscription Term or Renewal Period for the Subscription Fees payable in respect of the prior month or part thereof subject to clause 14.1;
        and the Customer shall pay each invoice immediately by direct debit.
    3. If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
      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
      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    4. All amounts and fees stated or referred to in these terms and conditions:
      1. shall be payable in pounds sterling;
      2. are, subject to clause 3(b), non-cancellable and non-refundable;
      3. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
    5. The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of inflation according to the Retail Price Index over the course of the Subscription Period or in respect of any change of the Customer’s usage profile at the start of each Renewal Period upon 30 days' prior notice to the Customer and the relevant schedule of their Service Agreement shall be deemed to have been amended accordingly.
  11. Proprietary rights
    1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these terms and conditions does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
    2. The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these terms and conditions.
  12. Confidentiality
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms and conditions.A party's Confidential Information shall not be deemed to include information that:
      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party's lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    2. Subject to clause 4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these terms and conditions.
    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 these terms and conditions.
    4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    6. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
    7. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
    8. No party shall make, or permit any person to make, any public announcement concerning these terms and conditions 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.
    9. The above provisions of this clause 11 shall survive termination of these terms and conditions, however arising.
    10. In performing its obligations under these terms and conditions, the Customer shall comply with the Mandatory Policies.
  13. Indemnity
    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 and/or Documentation.
  14. Limitation of liability
    1. Except as expressly and specifically provided in these terms and conditions:
      1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction.
      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 these terms and conditions; and
      3. the Services and the Documentation are provided to the Customer on an "as is" basis.
    2. Nothing in these terms and conditions excludes or limits the liability of the Supplier:
      1. for death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
      2. for fraud or fraudulent misrepresentation; or
      3. any other liability which may not be limited or excluded by law.
    3. Subject to clause 1 and clause 13.2:
      1. the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution and/or otherwise for any losses, damages, costs, charges and/or expenses which may be suffered by the Customer which fall within any of the following categories, in each case whether direct, indirect and/or consequential: (i) special losses, damages, costs, charges and/or expenses even if the Supplier was aware of the circumstances in which such special losses, damages, costs, charges and/or expenses could arise, (ii) loss of profits, (iii) loss of business, (iv) depletion of goodwill, (v) loss, damage and/or corruption of data or information, and/or (vi) pure economic loss; and
      2. the Supplier's total maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, in relation to and/or arising in connection with the performance or contemplated performance of these terms and conditions and/or any collateral contract shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
    4. All references to "Supplier" in this clause 14 shall include the Supplier, its employees, affiliates, subcontractors and suppliers of the Supplier, all of whom shall have the benefit of the exclusions and limitations in this clause 14.
    5. The parties agree that these terms and conditions are reasonable, that they have had the opportunity to obtain advice on these terms and conditions and that they have accepted them in their own respective commercial interests.
  15. Term and termination
    1. Acceptance of these terms and conditions shall, unless otherwise terminated as provided in this clause 14. Or superseded by a Service Agreement, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, acceptance of these terms and conditions shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
      1. either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case acceptance of these terms and conditions shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
      2. within the first 12 months of the Initial Subscription Term, either party notifies the other party of termination, in which case acceptance of these terms and conditions or the Service Agreement shall terminate 30 days after the end of the month in which notification was given; or
      3. otherwise terminated in accordance with the provisions of these terms and conditions;
      and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
    2. Without affecting any other right or remedy available to it, either party may withdraw their acceptance of these terms and conditions with immediate effect by giving written notice to the other party if:
      1. the other party fails to pay any amount due according to these terms and conditions on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
      2. the other party commits a material breach of any other term of these terms and conditions 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;
      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;
      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;
      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;
      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;
      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;
      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;
      9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
      10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 2(c) to clause 14.2(i) (inclusive);
      11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
    3. On termination of these terms and conditions for any reason:
      1. all rights and licences granted under these terms and conditions shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
      2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
      3. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than 30 days after the effective date of the termination of these terms and conditions, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 60 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
      4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
    4. The Supplier may suspend provision of the Services and Documentation immediately by giving written notice to the Customer if the Customer breaches its payment obligations under these terms and conditions.
  16. Force majeure
  17. The Supplier shall have no liability to the Customer under these terms and conditions if it is prevented from or delayed in performing its obligations under them, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
  18. Conflict
  19. If there is an inconsistency between any of the provisions in the main body of these terms and conditions, the Proposal and the relevant schedule of their Service Agreement, the provisions in the main body of the Service Agreement shall prevail.
  20. Variation
  21. No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  22. Waiver
  23. No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  24. Rights and remedies
  25. Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
  26. Severance
    1. If any provision (or part of a provision) of these terms and conditions are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    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.
  27. Entire agreement
    1. Until a Service Agreement has been entered into by both parties, these terms and conditions constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. Each party acknowledges that in entering into these terms and conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms and conditions.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.
    4. Nothing in this clause shall limit or exclude any liability for fraud.
  28. Assignment
    1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations resulting from their acceptance of these terms and conditions.
    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 resulting from the Customer’s acceptance of these terms and conditions.
  29. No partnership or agency
  30. The Customer’s acceptance of these terms and conditions is not intended to or shall not 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).

  31. Third party rights
  32. The Customers acceptance of these terms and conditions does not confer any rights on any person or party (other than the parties to these terms and conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
  33. Notices
    1. Any notice required to be given under these terms and conditions or Service 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 the Proposal or Service 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 the Proposal or Service Agreement.
    2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
  34. Governing law
  35. These terms and conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

  36. Jurisdiction
  37. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms and conditions or its subject matter or formation (including non-contractual disputes or claims).

    The Customer’s acceptance of these terms and conditions has been given on the date of their signing of the Proposal or the date of their Service Agreement whichever is the later.