The definitions and rules of interpretation in this clause apply in this agreement.



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 2.2.4.

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



Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information and includes (but is not limited to) all materials, specifications, data supplied by the Supplier to the Customer, all technical or commercial know-how, specifications, inventions, processes or initiatives.



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.



The Customer's premises as set out in the Order Form.



The fees payable to the Supplier for the provision of the Consulting Services as set out in Schedule 1 and the Order Form.



The Discover and/or Transform consulting services supplied by the Supplier team to the Customer under the terms of this agreement with the objective of supporting the enablement of the Entelechy Experience and any purchased User Subscriptions as set out in the Order Form and Schedule 1.



Has the meaning given to ‘controller’ as appropriate, in the UK GDPR.



Documentation made available to the Customer by the Supplier which sets out user instructions for the Software Services.



The initial term of the User Subscriptions for the Software Services beginning as set out in the Order Form and Schedule 2.



 Supplier's] business policies [and codes] [attached 

 listed] in Schedule 5, as amended by notification to the [Supplier 

9.00am to 5.00pm local UK time, each Business Day.



The Customer's order for the Services, as set out in the Customer's purchase order form.



Has the meaning given to ‘processor’ as appropriate, in the UK GDPR.



The software subscription services provided by the Supplier to the Customer (namely Discover and Transform) applicable to the Consulting Service procured under this agreement accessible via https://entelechy.academy/entelechy-app.html or https://entelechy.academy/ or any other website notified to the Customer by the Supplier from time to time.



The Consulting Services and/or Software Services as specified in the Order Form.



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



The subscription fees payable by the Customer to the Supplier for the User Subscriptions and any other services that form part of the subscription as updated from time to time and as set out in paragraph 1 of Schedule 1.



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



The Supplier's policy for providing support in relation to the Services as made available at https://entelechy.academy/legal/client-services-customer-support-policy and our online ticketing portal: https://support.entelechy.academy/ or such other website address as may be notified to the Customer from time to time.



The terms and conditions of use that apply and govern Approved User’s use of the Supplier’s services, whether through the Supplier’s website, mobile application or otherwise as set out in Schedule 3, as applicable to the Services.



The user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Software Services and the Documentation in accordance with this agreement.



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.

Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

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.

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

If there is any conflict or ambiguity between the terms of the documents listed above, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

Interpretation

Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Software Services during the Term solely for the Customer's internal business operations alongside the Consulting Services.

In relation to the Authorised Users, the Customer undertakes that:

the Authorised Users will comply at all times with the Terms of Use contained within Schedule 3;

the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

each Authorised User shall keep a secure password for their use of the Software Services and Documentation that the Supplier shall authenticate via mobile device or web platform from time to time, and that each Authorised User shall keep their password confidential;

should the Customer utilise a single sign on (SSO) service with the Supplier, the Customer shall be responsible for each Authorised User’s being up to date on access.

if any audit reveals that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within 10 Business Days of the date of the relevant audit.

The Customer shall ensure that any Authorised Users for whom it opens an account has consented to that account opening. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

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.

except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

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

attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

access all or any part of the Software in order to build a product or service which competes with the Software and/or the Documentation; or

use the Services to provide services to third parties; or

subject to clause 22.1, 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

attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or

introduce or permit the introduction of, any Virus into the Supplier's network and information systems.

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.

The Customer shall be responsible for Authorised Users, even if they are no longer an employee, agent or sub-contractor of the Customer. At the point in which the Authorised User is no longer engaged by the Customer, the Customer must deactivate the Authorised User’s access in the Entelechy Customer Portal.

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.

The Supplier shall use commercially reasonable endeavours to make the Software available 24 hours a day, seven days a week, except for:

planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.

The Supplier will provide the Customer with standard support services during the Term in line with the Supplier’s Services Policy 

https://entelechy.academy/legal/client-services-customer-support-policy

 (as may be amended by the Supplier from time to time).

Client Experience and Customer Support Policy 

User subscriptions

Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 and the Order Form and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.

If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within the timescales agreed in writing by the Supplier to the Customer.

The original Order Form subscription rate is held for the original User Subscription volumes covered in the original Order From, any additional User Subscriptions purchased by the Customer after the Order Form date shall be purchased at the full standard rate for such User Subscriptions, as published on Entelechy’s website from time to time.

If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

Additional user subscriptions

The following clause 4 shall apply where the Customer purchases Consulting Services.

Subject to the Customer purchasing the Consulting Services in accordance with this clause 4 and subject to clause 9.1, the restrictions set out in this clause 4 and the other terms and conditions of this agreement, the Supplier hereby agrees to provide to the Customer a fixed amount of Consulting Service days (“

”) that are detailed in Schedule 1 and the Order Form to be used in the enablement of purchased User Subscriptions within the Term. The Customer acknowledges and agrees that the Consulting Service Days shall be non-transferable to other Customer projects or any other entity.

The Customer acknowledges and agrees that the Consulting Service days are represented as one full consulting day constituting seven working hours of time or one-half day for three and a half hours of time as provided by the Supplier. Such time shall be delivered directly to the Customer, in person or virtually (as agreed in an Order Form) in the case of direct Consulting Service delivery, or indirectly as preparation by the Supplier for direct delivery. The Supplier shall track and measure the time incurred by the Supplier on each Consulting Service Day with the Supplier holding the final and only view on Consulting Service time utilised. The number of Consulting Service Days shall not correlate to outputs, outcomes, impact or value gained by the Customer.

Consulting Services shall be delivered to the Customer by a consultant, trainer, client service executive, Supplier client partners or a member of the content, insight or wider Supplier team. Consulting Service Days shall be allocated by the Supplier at the Supplier’s discretion in order to deliver the best outcomes for the Customer. The Supplier reserves the right to alter the identity of the personnel that deliver Consulting Services to the Customer, in line with capacity and skill requirements.

Consulting Services detailed in the Order Form and Schedule 1 outline a volume of purchased Consulting Service Days. The indicative schedule for when such Consulting Service Days are to be delivered by which roles and members of the Supplier team shall be agreed between the parties following contract signature and the beginning of the Term (“

”). The parties agree that the Consulting Service Plan shall be subject to change and is not binding to this agreement. The Supplier agrees to endeavour to deliver against this plan and take all reasonable measures to do so.

Subject to clause 4.6 and clause 4.7, the Customer may, from time to time during the Term, purchase additional Consulting Services Days in excess of the number set out in the Order Form and Schedule 1 and the Supplier shall provide the additional Consulting Service Days subject to capacity, skill set availability and an additional fee.

If the Customer wishes to purchase additional Consulting Services or Consulting Service Days, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional Consulting Services or Consulting Service Days and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional Consulting Services and provide the additional Consulting Service Days within the timescales agreed in writing by the Supplier to the Customer.

The original Order Form Consulting Services fee rate is held for the volumes of services, any additional Consulting Services are at the full standard rate, publishing on Entelechy’s website.

If the Supplier approves the Customer's request to purchase additional Consulting Services or additional Consulting Service Days, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional Consulting Services as set out in paragraph 4 of Schedule 1.

All Consulting Service Days purchased by the Customer, either from the original Order Form, or any additional Consulting Service Days purchased in line with clause 4.9 must be utilised within the Initial Subscription Term. Should there be unutilised Consulting Service Days at the end of the Initial Subscription Term either:

The Supplier shall, at its sole discretion agree to the Customer’s written request to extend the Initial Subscription Term at least 10 working days before the expiry of the Initial Subscription Term. The terms of this agreement shall apply to any extended term.

The Supplier shall notify the Customer in writing that resource capacity to fulfil the Consulting Services required within the Initial Subscription Term cannot be delivered and shall therefore agree to extend the Initial Subscription Term end date to a date stipulated by the Supplier.

Clause 9.7 shall apply in respect of any Consulting Service Days that are not utilised by the Customer during the Initial Subscription Term. The Customer shall pay for the unutilised Consulting Service Days in line with the payment terms of this agreement.

Consulting services

In respect of Personal Data that the Customer provides to the Supplier, both parties agree that Customer and Supplier will be data Controllers but will not be Joint Controllers.

To the extent that either party processes Personal Data on behalf of the other the provisions of Schedule 4 shall apply.

Data protection

The Customer acknowledges that the Software 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.

Third party providers

The Supplier undertakes that the Services will be performed substantially in accordance with the agreement and with reasonable skill and care.

The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or 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.

the Customer's use of the Software Services will be uninterrupted, and/or in respect of the Services error-free;

that the Services, and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or

the Software or the Software Services will be free from Viruses;

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 Software Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

is not responsible or liable for any brand reputational, cultural, or otherwise intangible impact to the Customer resulting from the Services.

This agreement 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 this agreement.

The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier 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 

www.entelechy.academy/legal/back-up-support-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 for which it shall remain fully liable.

Back-up Support Policy

Supplier's obligations

all necessary co-operation in relation to this agreement; and

all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services and access to Customer Premises (where agreed) to provide the Consulting Services;

without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;

carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

ensure that the Authorised Users use the Services in accordance with the Terms of Use;

obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing 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.

grant to the Supplier a royalty free, perpetual, worldwide licence to use the Customer’s logo, name and other brand assets for the purposes of the Supplier’s promotional activity including case studies, press releases and other public facing materials.

automatically authorise the Supplier to use the aggregated and anonymised Customer Data for the purposes external market research and case studies.

permit the external distribution of Authorised User created content for the purposes of marketing, case studies and wider world enablement.

The Customer shall not (except with the prior written consent of the Supplier) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the Supplier any person employed or engaged by such other party in the provision of the Services or at any time during the term of this agreement or for a further period 6 of months after the termination of this agreement other than by means of a national advertising campaign open to all and not specifically targeted at any of the staff of the Supplier.

If the Customer commits any breach of clause 8.2, the Customer shall, on demand, pay to the Supplier a sum equal to one year's basic salary or the annual fee that was payable by Supplier to that employee, worker or independent contractor plus the recruitment costs incurred by the Supplier in replacing such person.

Customer's obligations

The Customer shall pay the Subscription Fees and Consulting Fees to the Supplier in accordance with this clause 9 and Schedule 1.

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:

its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:

on the Effective Date for the Subscription Fees (for the Software Services) payable in respect of the Initial Subscription Term; and

subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees and Consulting Fee payable in respect of the next Renewal Period

at such other times as may be applicable for any Subscription Fees that start at other times over the course of the Agreement;

its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:

subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees and Consulting Fees payable in respect of the next Renewal Period,

at such other times as may be applicable for any Subscription Fees that start at other times over the course of the Agreement

and the Customer shall pay each invoice within 30 days after the date of such invoice.

In respect of the Consulting Fees, the Supplier shall invoice the Customer the Consulting Fees in advance in line with the information in the Order Form.

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:

the Supplier may, without liability to the Customer, disable the Customer's and Authorised Users’ password, account and access to all or part of the Software Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;

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; and

suspend the provision of the Consulting Services.

All amounts and fees stated or referred to in this agreement:

are, subject to clause 13.3.2, non-cancellable and non-refundable;

are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

The Supplier shall be entitled to increase the Subscription Fees and Consulting Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.

In the event that the parties agree that the Services (or any element of them) is to be invoiced and paid for in advance of delivery, any sums paid by the Customer to the Supplier in line with this clause shall not be refundable in the event of non-delivery of the Services by the Supplier. For the avoidance of doubt, any unused Consulting Days shall not be transferable or refundable.

Charges and payment

The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement 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.

The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

Proprietary rights

Each party acknowledges that it may receive or otherwise have access to Confidential Information of the other party in connection with the agreement. Each party hereby agrees it shall keep Confidential Information of the disclosing party strictly confidential and that it shall safeguard such Confidential Information from unauthorised disclosure, reproduction or use.

Each party shall use Confidential Information of the disclosing party only for the purpose and to the extent necessary for the performance of its obligations under the agreement.

Each party may only disclose Confidential Information to its employees, officers, representatives, contractors, subcontractors or advisers who strictly need to know such information for the purposes of carrying out its obligations under the agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.

The Supplier will collectCustomer Data from Authorised Users that will not be accessible to the Customer. The Supplier will also aggregate and anonymise Customer Data from Authorised Users for the Customer. In both cases, this is to maintain the data integrity from Authorised Users and deliver the most effective Services experience.

This clause 11 shall not apply to the extent that:

such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure;

such information was obtained from a third party without obligation of confidentiality;

such information was already in the public domain at the time of disclosure otherwise than through a breach of the agreement;

such information was independently developed without access to the other party's Confidential Information; or

such information is required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in the agreement are granted to the other party, or to be implied from the agreement.

On termination or expiry of the agreement, each party shall:

destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information including any personal data processed (as Data Processor) for the other (as Data Controller).In respect of personal data collected by a party as controller in its own right each party will retain it in accordance with that party’s Data Retention Policy;

erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14.

No party shall make, or permit any person to make, any public announcement concerning this agreement 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.

Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

In performing its obligations under the agreement, the Customer shall comply with the Mandatory Policies.

This clause 11 shall survive termination of the agreement, however arising.

Confidentiality and compliance with policies

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, provided that:

the Customer is given prompt notice of any such claim;

the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

the Customer is given sole authority to defend or settle the claim.

The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services in accordance with this agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

the Supplier is given prompt notice of any such claim;

the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

the Supplier is given sole authority to defend or settle the claim.

In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement or claim is based on:

a modification of the Services by anyone other than the Supplier; or

the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or

the Customer's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

The foregoing and clause 13.3.2 states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

Indemnity

Except as expressly and specifically provided in this agreement:

the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

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; and

the Services are provided to the Customer on an "as is" basis.

Nothing in this agreement excludes the liability of the Supplier:

for death or personal injury caused by the Supplier's negligence; or

for fraud or fraudulent misrepresentation.

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

the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions and Consulting Fees during the 12 months immediately preceding the date on which the claim arose.

Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.

Limitation of liability

This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a 

either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the 

. 60 days prior to each Renewal Period, the Customer shall inform the Supplier in writing whether it wishes to renew the Consulting Service or the Software Service, or both.

Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

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 (

) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986 

Software Subscription and Consultancy Agreement

Contents