Terms & Conditions
(1) n3RGY DATA LIMITED incorporated and registered in England and Wales with company number 11712674 whose registered office is at 4 Benham Road, Chilworth, Southampton SO16 7QJ (the “Supplier”)
(2) Your company or organisation (the “Customer”)
(A) The Supplier has developed certain software applications and web-based platforms which it makes available to subscribers via the internet on a pay-per-use basis for the provision of smart meter data.
(B) The Customer wishes to use the Supplier’s service in its business operations.
(C) The Supplier has agreed to provide, and the Customer has agreed to take and pay for the Supplier’s services subject to the terms and conditions of this agreement.
(D) The Supplier will use the Smart Energy Code Party credentials and Party ID of its shareholder, n3RGY LIMITED, incorporated and registered in England and Wales with the company number 11203504 whose registered office is at 4 Ovington Drive, Fleet, United Kingdom, GU51 1DF.
The following definitions and rules of interpretation apply in this agreement.
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Annual Fee: the annual fee payable by the Customer to the Supplier for the User Subscription as set out online or by email from time to time.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Authorised Users: any employees, agents and independent contractors of the Customer who are employed or otherwise engaged by the Customer to use the Services.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.30 pm on any Business Day.
Clients: mean individuals or bodies corporate who have explicitly consented to provide the Client Data to the Supplier.
Client Data: means certain data, analytics and usage patterns obtained from various end users of smart meters installed across the United Kingdom.
Consumer: means the authorised end user of the energy and owner of the energy data, typically responsible for bill payment. The consumer can be a natural person, any individual inhabiting a domestic property or an authorised representative of the business occupying the property.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
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 Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
EEA: European Economic Area.
Initial Subscription Term: the period of one year from the Commencement Date.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mandatory Policies: the Supplier’s business policies and codes (including but not limited to Privacy and Cookie policies) set out online at https://data.n3rgy.com from time to time.
Renewal Period: the period described in clause 14.1.
SEC: means The Smart Energy Code (as amended from time to time).
Services: the subscription services provided by the Supplier to the Customer to access the User Subscription under this agreement via https://data.n3rgy.com or any other website notified to the Customer by the Supplier from time to time.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscription as set out online or by email from time to time.
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 made available at https://data.n3rgy.com or such other website address as may be notified to the Customer from time to time.
User Subscription: the user subscription purchased by the Customer pursuant to clause 9.1 which shall entitle the Authorised Users to access and use the information contained within the Client Data.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax chargeable in the UK.
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 a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes email but not fax.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 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.
2. Basis of agreement
2.1 The completion of the details set out online or via email constitutes an offer by the Customer to procure the Services in accordance with this agreement (the “Offer”).
2.2 The Offer shall only be deemed to be accepted when the Supplier confirms its acceptance to the Customer in writing (or via the website), and on which date, the contract for the Services shall come into existence (the “Commencement Date”).
2.3 This agreement shall commence on the Commencement Date and shall continue, unless terminated in accordance with clause 14 (Term and termination).
2.4 The provisions of this agreement are the terms and conditions on which the Supplier is to supply the Services to the Customer.
3. User Subscription
3.1 Subject to the Customer purchasing the User Subscription in accordance with clause 9, the restrictions set out in this clause 3 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for their use of the Services, and that each Authorised User shall keep their password confidential.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property.
3.4 and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Services or any material that breaches the provisions of this clause 3.
(a) The Customer shall not:
(i) 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:
(ii) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Services in order to build a product or service which competes with the Services; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except its Authorised Users, or
3.5 attempt to obtain, or assist third parties in obtaining, access to the Services.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, notify the Supplier within three hours of its discovery.
3.6 The rights provided under this clause 3 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
4. Variation to the user subscription
4.1 Subject to clause 4.2, the Customer may, from time to time during any Subscription Term, increase its access rights under the User Subscription and the Supplier shall grant such additional access to the Services to the Authorised Users in accordance with the provisions of this agreement.
4.2 If the Customer wishes to increase its access rights under the User Subscription, the Customer shall submit its request online or via email. The Supplier shall evaluate such request and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the access for the additional User Subscription within one Business Day of its approval of the Customer’s request.
4.3 Where the Supplier has approved the Customer’s request under clause 4.2, the Customer shall, pay to the Supplier the relevant fees for such increased User Subscription as set out online or via email to the Customer and, if such increased User Subscription is 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).
5. Supplier’s obligations
5.1 The Supplier undertakes that in providing the Services it shall:
(a) do so with reasonable skill and care;
(b) comply with all Applicable Laws and the SEC; and
(c) comply with the Mandatory Policies.
5.2 The undertaking at clause 5.1 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 5.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
(c) is not responsible for any errors contained within the Client Data (howsoever arising); and
(d) is not responsible for any use of the Services by the Customer in relation to any safety critical applications,
5.3 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.
5.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6. Customer’s obligations
6.1 The Customer 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 provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all Applicable Laws and not to directly or indirectly cause the Supplier to breach the SEC;
(c) 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;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) ensure that its network and systems are compatible with the Supplier’s user instructions from time to time;
(f) 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;
(g) ensure that any notification or detection of termination of consent from a Consumer within a property (including events such as moving to or from a property) that is enabled to provide smart meter data is immediately notified to n3rgy data via the appropriate API call for withdrawal of consent;
(h) ensure that any initial or updated customer terms and conditions presented to the Consumer in relationship to gaining and maintain Consumer consent to access their energy data is reviewed and agreed to by n3rgy data ltd to ensure compliance with the appropriate aspects of industry regulation;
(i) ensure that consenting parties for non-domestic properties have the appropriate authorisation on behalf of that business or organisation responsible for that property; and
(j) allow the Supplier or any other authority, such the Information Commissioners Office (or agent of) or Smart Energy Code (or agent of) the ability to audit the Customers processes, controls, measures or evidence in place to demonstrate adherence to any directly or indirectly applicable regulations (including but, not limited to Data Protection Legislation or the Smart Energy Code). The Customer will also promptly correct or implement resolutions to any failings identified through these audits.
(k) where the use of Trusted consent has been selected, propose an alternative consent process to n3rgy data who will review and approve (including seek the review and approval by appropriate authorities) prior to enabling the trusted consent facilities. On enablement the Customer will
(i) ensure their fully and complete compliance with the approved alternative consent process
(ii) immediately inform n3rgy data of any failures in full compliance with the approved alternative consent process
(iii) store and maintain evidence in relationship to the agreed process and provide it for review (to n3rgy or appropriate authorities or auditors) for a period no less than 4 years beyond the last data collected from the meter in question
(iv) cover all and any liabilities arising from their failure to fully comply with the approved alternative consent process.
7.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
7.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 am to 2.00 pm UK time; and
(b) unscheduled maintenance, provided that the Supplier has used reasonable endeavours to give the Customer at least two Business Hours’ notice in advance.
7.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Business Hours in accordance with the Supplier’s 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.
8. Data Protection
8.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8.2 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at https://data.n3rgy.com/privacy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
8.3 Both parties will comply with all applicable requirements of the Data Protection Legislation and the SEC (as applicable). This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.4 The parties acknowledge that:
(a) if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
(b) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement.
8.5 Without prejudice to the generality of clause 8.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
8.6 Without prejudice to the generality of clause 8.3, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer 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 and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws 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;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or the 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) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach; and
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data.
8.7 Each party shall ensure that it has in place appropriate technical and organisational measures, 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 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).
8.8 In respect of the Client Data, each party shall:
(a) ensure that the transferring party complies with the Data Protection Legislation;
(b) ensure that is has provided appropriate safeguards in relation to the transfer;
(c) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(d) notify the other party without undue delay on becoming aware of a personal data breach;
(e) fully comply with the SEC; and
8.9 assist the other party, with each party to be responsible for their own cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation or the SEC (including any audit requirements).
9. Charges and payment
9.1 the Customer shall pay the Annual Fee and/or the Subscription Fees (together the “Charges”) to the Supplier for the User Subscription in accordance with this clause 9.
9.2 The Customer shall on the Commencement Date provide to the Supplier its bank account details (for the purposes of setting up a debit), together with any other relevant valid, up-to-date and complete details, including contact and billing details.
9.3 Where the Customer provides its bank account details (and sets up a debit mandate with its bank), the Customer hereby authorises the Supplier to collect the amounts due under this agreement:
(a) on the Commencement Date for the Charges payable in respect of the Initial Subscription Term; and
(b) subject to clause 14.1, on each anniversary of the Commencement Date for the Charges payable in respect of the next Renewal Period,
in each case, the Customer shall pay each invoice within 30 days after the date of such invoice (the “Due Date”).
9.4 If the Supplier has not received payment by the Due Date, and without prejudice to any other rights and remedies of the Supplier:
(a) 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
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 13.3, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.6 The Supplier shall be entitled to increase the Charges, the fees payable in respect of the increased User Subscription purchased pursuant to clause 4.3, at the start of each Renewal Period upon 90 days’ prior notice to the Customer.
9.7 The Supplier may from time to time decrease the Charges, with such decrease to take effect upon 30 days’ prior written notice to the Customer.
10. Third party providers
11. Intellectual property rights
11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all the 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, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
11.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the Commencement Date, copyright, trademark, 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:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing and clause 13.3 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 under this agreement.
13. Limitation of liability
13.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
13.2 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.3 Subject to clause 13.2, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any 3 billing cycles (3 months) shall not exceed the greater of:
(a) £10,000; or
(b) 110% of the amount received by the Supplier from the Customer under this agreement.
13.4 In clause 13.3:
(a) contract year: a contract year means a 12-month period commencing from the Commencement Date or any anniversary of it;
(b) total charges: the total charges mean all sums paid by the Customer and all sums payable under this agreement in respect of the Services actually supplied by the Supplier, whether or not invoiced to the Customer; and
(c) total liability: the Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement.
13.5 This clause 13.5 sets out specific heads of excluded loss:
(a) Subject to clause 13.2, the following types of loss are wholly excluded:
(i) Loss of profits;
(ii) Loss of sales or business;
(iii) Loss of agreements or contracts;
(iv) Loss of anticipated savings;
(v) Loss of use or corruption of software, data or information;
(vi) Loss of or damage to goodwill; and
(vii) Indirect or consequential loss.
13.6 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 5. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
14. Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Commencement 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 Renewal Period), unless:
(a) either party gives to the other party 30 days written notice to terminate at any time during the Subscription Term; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 In the event the Customer terminates the agreement in accordance with clause 14.1(a) during the Initial Subscription Term, then such Customer shall not be entitled to any refund of the Annual Fee.
14.3 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:
(a) 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 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement 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;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) 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 Insolvency Act 1986;
(e) 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;
(f) 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;
(g) 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;
(h) 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;
(i) 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;
(j) 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;
(k) 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 14.2(d) to clause 14.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) there is a change of control of the other party.
14.4 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
(b) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 8.6(c), 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 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 30 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
(c) 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.
15. Non solicitation
In contemplation of the parties entering into this agreement, and for a period of three months immediately following the end of the Subscription Term, the Customer undertakes to the Supplier that they will not knowingly, directly or indirectly employ or otherwise engage or use the services of any person who is or was, in the three months immediately following the end of the Subscription Term, an officer, senior employee or consultant of, or under a contract of services to, the Supplier.
16. Force majeure
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, 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.
17. Assignment and other dealings
17.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
17.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
20. Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
21.2 If any provision or part-provision of this agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
22.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
23. No partnership or agency
23.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Third party rights
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following addresses:
(i) in respect of the Supplier to: email@example.com; and
(ii) in respect of the Customer to: the address provided with its order (or as otherwise notified to the Supplier from time to time).
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 25.2(c), business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
25.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Governing law and jurisdiction
26.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
26.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.