1. DEFINITIONS AND INTERPRETATION

1.1 In the Agreement, the following words and phrases have the meaning given below (unless the context otherwise requires):
“Additional Authorised User Request” has the meaning given in Condition 3.7;

“Agreement” means these Conditions, the Order Form, the front sheet of the Agreement and any documents incorporated by reference in these Conditions and the Order Form;
“Applicable Law” means in each applicable jurisdiction, any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directive or requirement of any Regulatory Body, delegated or subordinate legislation or notice of any Regulatory Body from time to time and reference to “Applicable Laws” will be construed accordingly;
“Authorised Users” means those employees, agents and independent contractors of You who are authorised by You to use the Software Licence;
“Authorised User List” has the meaning given in Condition 3.5;

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Cancellation Fee” has the meaning given in Condition 7.14;

“Committed Fees” means an amount equal to all:
(a) unpaid Software Licence Fees, Support Fees, Hardware Fees and Professional Services Fees due and payable by You to Us as at the date of termination of the Agreement; plus
(b) Software Licence Fees, Hardware fees and Support Fees that would have been due and payable by You to Us from the date of termination until the end of the then current Subscription Term (as at the date immediately prior to the date of termination);
“Change of Control” means the beneficial ownership of more than fifty per cent (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” will be construed accordingly;
“Conditions” means these software, hardware, professional services and support conditions;
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Condition 15;

“Control” means the ability to control or direct, directly or indirectly, the board, executive body, decision making process or management of an entity by virtue of ownership, right of appointment, right to control election or appointment, voting rights, the ability to control the exercise of voting rights, management agreement or any other agreement;
“CRTPA” has the meaning given in Condition 29.1;

“Data Controller, Data Processor, Data Subject, Process/Processing, Personal Data, Personal Data Breach and Special Categories of Personal Data” will have the same meaning as given to them in the Data Protection Laws;
“Data Protection Laws” means applicable legislation protecting the personal data of natural persons, including in particular the Data Protection Act 1998 (and, from 25 May 2018, Regulation (EU) 2016/679 (“GDPR”) and the Data Protection Act 2018), together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities;
“Delivery” means the delivery of the relevant Hardware pursuant to an Order and in accordance with the Agreement and reference to “Deliver” and “Delivered” will be to completed Delivery in accordance with Condition 4.12;

“Delivery Date” means the date for Delivery set out in the Order Form;
“Delivery Location” means the location for Delivery set out in the Order Form;
“Delivery Note” means a delivery note from Us or Our nominated carrier showing:
(a) the Agreement reference number;
(b) the date of Your Order;
(c) the type and quantity of Hardware Delivered;
(d) whether packaging materials are required to be returned to Us; and
(e) the outstanding balance of Hardware remaining to be Delivered (if any);
“Effective Date”

“Enhanced Support Services”

“Enhanced Support Policy ”
has the meaning given to it in the Order Form;

means the enhanced support services provided by Us to You under the Agreement in relation to the Subscription Services, as more particularly described in Our Enhanced Support Policy;

means Our enhanced software and hardware support policy in relation to the Subscription Services and Hardware as made available at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time;

“Excluded Losses” means:
(a) loss of profits;
(b) loss of revenue;
(c) loss of use;
(d) loss of goodwill;
(e) loss of data;
(f) loss due to interruption of business; or
(g) loss of anticipated savings;
“Expenses” means:
(a) travelling expenses, hotel costs, subsistence and associated expenses incurred by Our Personnel in connection with the provision of Professional Services;
(b) the cost of services provided by third parties for the performance of the Professional Services; and
(c) the cost of any materials;
“Fees” means the fees payable by You to Us under the Agreement, including the Initial Fee, Licence Fees, Support Fees, Hardware Fees and Professional Services Fees;
“Fair Use Policy” means Our fair use policy in relation to You use of the Support Services made available at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time;
“Force Majeure Event” has the meaning given in Condition 20;

“Group” means, in relation to any company, any other person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with such company;
“Hardware” means the hardware provided by Us as set out in the Order Form;
“Hardware Fees” means the fees for the hardware as set out in the Order Form;
“Hardware Misuse” means:
(a) You make any further use of the Hardware after giving a notice in accordance with Condition 4.5.1;
(b) the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware or (if there are none) good trade practice;
(c) the defect arises as a result of Us following Your instructions;
(d) You alter or repair such Hardware without the written consent of Us; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, mishandling, or abnormal working conditions;
“Initial Support Term” means the initial term of the Support Services as set out in the Order Form;

“Insolvency Event” means the occurrence of any of the following events in respect of the relevant entity (or any event analogous to any of the following in any jurisdiction):
(a) the entity passing a resolution for Your winding up, or having a winding-up petition presented against the entity, or a court of competent jurisdiction making an order for the entity to be wound up or dissolved or the entity otherwise being otherwise dissolved (other than for the purpose of a bona fide reconstruction or amalgamation);
(b) the appointment of an administrator of, or the making of an administration order (or the giving of notice of intention to appoint an administrator) in relation to, the entity, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or part of the entity’s undertaking, assets, rights or revenue;
(c) the entity entering into an arrangement, compromise or composition in satisfaction of its debts with the entity’s creditors or any class of them or taking steps to obtain a moratorium or making an application to a court of competent jurisdiction for protection from the entity’s creditors; or
(d) the entity being unable to pay Your debts or being capable of being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
“Inspection” has the meaning given in Condition 10.1;

“Licence Fees” means the Licence Fees payable by You to Us for the Authorised Users, as set out in the Order Form;
“Licence Term” means the term of Your Software Licence, as set out in the Order Form;
“Man Day” has the meaning given in Condition 7.10;

“Man Day Rate” means the charge rates applicable in respect of applicable roles for a Man Day, as identified in the Rate Card;
“Maximum Authorised Users” means the maximum number of Authorised Users that are allowed to access and use the Software Licence, as set out in the Order Form;
“Normal Business Hours” means 8.00 am to 6.00 pm (UK time), each Business Day;
“Order” means Your order using the Order Form for the Software Licence, Hardware and Support Services and reference to “Ordered” will be construed accordingly;
“Ordered Hardware” means Hardware forming the subject of an Order;
“Order Forms” means the Software, Hardware, Professional Services and Support Services Order Form;
“Our Personnel” means all employees, staff, officers, individual contractors, other workers, agents and consultants, of Us, Our Group and/or any sub-contractor who are engaged in the provision of the Software Licence, Hardware and/or Support Services, from time to time;
“Our IT and Data Policy” means Our back-up, privacy and security policy relating to the back-up, privacy and security of Your Data available at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time, as such document may be amended from time to time by Us in Our discretion;
“Payment Terms” means the payment terms applicable from time to time as set out in the Order Form;
“Premium Support Services” means the premium support services provided by Us to You under the Agreement in relation to the Software Licence, as more particularly described in Our Premium Support Policy;

“Premium Support Policy” means Our premium software and hardware support policy in relation to the Software Licence and Hardware as made available at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time;
“Professional Services” means:
(a) services that are expressly stated under the Agreement or anticipated to be provided on a time and materials or Man Day Rate basis; and
(a) services that You and Us agree in writing are to be provided on a time and materials or Man Day Rate basis;
“Professional Services Fee” means the Man Day Rate payable by You to Us for the Professional Services plus any and all associated Expenses;
“Prohibited Material” means any material that 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;
“Rate Card” means the rate card from time to time set out at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time;
“Regulatory Bodies” means in each applicable jurisdiction, those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in the Agreement or any other affairs of Us and “Regulatory Body” will be construed accordingly;
“Relevant Requirements” has the meaning given in Condition 30.1.1;

“Renewal Period” means the period described in Condition 2;

“Risk Period” has the meaning given in Condition 4.20;

“Software” means the online software applications provided by Us as part of the Software Licence as set out in the Order Form;
“Support Fees” means the support fees set out in the Order Form for Standard Support, Premium Support and Enhanced Support (unless the context otherwise requires);
“Support Services” means the Standard Support Services and/or Premium Support Services and/or Enhanced Support Services (as the context requires);
“Support Term” means the Initial Support Term together with any subsequent Renewal Periods;
“Standard Support Services” means the support services provided by Us to You under the Agreement, as more particularly described in Our Standard Support Policy;
“Standard Support Policy” means Our standard software and hardware support policy in relation to the Software Licence and Hardware as made available at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time;
“Software Licence” means the licence to access and use the Software provided by Us to You under the Agreement;
“Support Upgrade Request” has the meaning given in Condition 6.10;

“Travel and Expenses Policy” means the travel and expenses policy that We will comply with when We incur travel and expenses, which are payable by You under or in connection with, this Agreement, available at www.mitrefinch.co.uk or such other website address as may be notified to You from time to time;
“Updates and Patches” means any new update to the Software which adds or updates minor functionality or features, or otherwise corrects faults or fixes bugs in the Software, as determined by Us;,
“Upgrades and Releases” means any new release or upgrade to the Software which adds, updates or enhances functionality or features (excluding Updates and Patches), as determined by Us;
“Virus” means 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;
“Warranty Period” means the warranty period for the Hardware set out in the Order Form (and any extension of such period pursuant to Condition 4.6);

“Work-Around” means a change in operating procedures or a solution, in order to avoid or mitigate in so far as is reasonably practicable the effects of an incident with the aim of minimising inconvenience to You;
“Year” means in relation to:
(a) the first Year, the period of twelve (12) months from the Effective Date; and
(b) each subsequent Year, each period of twelve (12) months thereafter;
“Your Data” means the data inputted by You, Authorised Users, or Us on Your behalf for the purpose of using the Software Licence or Support Services or facilitating Your use of the Software Licence or Support Services;
“Your Personnel” means all employees, staff, officers, individual contractors, other workers, agents and consultants, of You; and
“Your System” means the combination of hardware, software, computer and telecoms devices and equipment used by You for the receipt of the Software Licence and/or Support Services (as the context requires).
1.2 In the Agreement (unless the context requires otherwise):
1.2.1 the words “including”, “include”, “for example”, “in particular” and words of similar effect will be construed so that they do not limit the general effect of the words which precede them, and so that any examples that are given are not to be exclusive or limiting examples of the matters in question;
1.2.2 references to the Agreement and any other document referred to in the Agreement, is a reference to it as validly varied, supplemented and/or novated from time to time;
1.2.3 references to the singular include the plural and vice versa;
1.2.4 recitals and headings are all for reference only and will be ignored in construing the Agreement;
1.2.5 references to any one gender do not exclude other genders;
1.2.6 general references to a “person” will be understood to include (as applicable), a natural person, a company, a partnership, and an unincorporated association (in each case whether or not having separate legal personality); and
1.2.7 reference to any legislative provision shall be deemed to include:
1.2.7.1 any statutory instrument, by law, regulation, rule, subordinate or delegated legislation or order and any rules and regulations which are made under it; and
1.2.7.2 any subsequent re enactment or amendment of the same, unless this imposes a substantial new liability upon, or significantly adversely affects the rights of, Us.
2. TERM

The Agreement will commence on the Effective Date and will continue unless and until terminated in accordance with Condition 18.
3. SOFTWARE LICENCE

GENERAL
3.1 We will provide the Software Licence to You on and subject to the terms of the Agreement.
GRANT OF RIGHTS
3.2 Subject to the terms of the Agreement, We grant to You a non-exclusive and non-transferable right, to permit Authorised Users to access and use the Software during the Licence Term solely for Your internal business purposes in the UK.
3.3 The rights provided under Condition 3.2 are granted to You only, and will not be considered granted to any other member of Your Group.
AUTHORISED USERS
3.4 You will be responsible for the acts and omissions of Your Authorised Users. You will ensure that Authorised Users use the Software Licence in accordance with the Agreement as if they were a party to the Agreement.
3.5 You will at all times keep detailed records of the then current Authorised Users (“Authorised User List”) and will provide the Authorised User List to Us promptly upon Our request.
3.6 You will ensure that the number of Authorised Users You authorise to access or use the Software Licence does not exceed the applicable Maximum Authorised Users (if any). If You exceed the Maximum Authorised Users, We may charge You additional Licence Fees and Support Fees for such additional Authorised Users.
AUTHORISED USERS
3.7 If Your Software Licence is subject to Maximum Authorised Users, You may from time to time purchase additional Authorised Users. If You wish to purchase additional Authorised Users, You will notify Us in writing (“Additional Authorised User Request”). Each Additional Authorised User Request will identify the quantity and type of Authorised Users to be provided by Us, and the type Support Services required in relation to the Authorised Users (but if existing Authorised Users have Premium or Enhanced Support Services, We may require the additional Authorised Users also have Premium or Enhanced Support Services).
3.8 We will evaluate the Additional Authorised User Request and provide You with Our approval or rejection as soon as reasonably practicable.
3.9 If We approve the Additional Authorised User Request (in whole or in part):
3.9.1 We will grant access to the Software Licence to such additional Authorised Users; and
3.9.2 You will pay to Us the applicable Licence Fees and Support Fees for such additional Authorised Users in accordance with the Payment Terms.
USE OF THE SOFTWARE LICENCE

3.10 You will not and will procure that Authorised Users will not, access, store, distribute or transmit any Viruses or any Prohibited Material during use of the Software Licence. We reserve the right, without liability or prejudice to Our other rights and remedies, to disable Your access to and suspend all or part of the Software Licence if You breach this Condition.
3.11 You will not and will procure that Authorised Users will not, except to the extent permitted under the Agreement or by any Applicable Law (which is incapable of exclusion by agreement between You and Us):
3.11.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the Software in any form or media or by any means; or
3.11.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
3.12 You will not:
3.12.1 access all or any part of the Software Licence in order to build a product or service which competes with the Software Licence;
3.12.2 use the Software Licence to provide services to third parties;
3.12.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Software Licence, or otherwise make the Software Licence available to any third party except the Authorised Users, unless approved by Us in writing in pursuant to Condition 26.1; or
3.12.4 attempt to obtain or assist any person (other than an Authorised User) in obtaining, access to the Software Licence.
UPGRADES AND RELEASES
3.13 We do not provide Upgrades and Releases or Updates and Patches. If You require Us to provide Upgrades and Releases or Updates and Patches, You will be required to contact Us. We may from time to time contact You in relation to: Upgrades and Releases; and Updates and Patches, that are required to comply with Applicable Law.
3.14 Updates and Patches or Upgrades and Releases may cause bespoke development or customised software features unique to your software to change or cease operation, and no representations are made as to their continued functionality. You may request further bespoke development or customisation which We will assess and advise you of Our decision and the cost to You of such work.
4. HARDWARE
GENERAL
4.1 If Hardware is selected in the Order Form. We will, in consideration of the Hardware Fees, supply the Hardware to You, on and subject to the terms of the Agreement.
4.2 If Engineering Services are selected in the Order Form, We will, subject to a Site Survey of your premises (which may be undertaken remotely), and You completing Your obligations in Condition 4.3 install our hardware as outlined in the Site Survey
4.3 Hardware may require dedicated power and wired data connections or other civil works on your premises to facilitate its installation which will be advised to you in writing. You will be responsible for ensuring the completion and safety of these works prior to Our commencement of any Engineering Services.
WARRANTY

4.4 We warrant that during the Warranty Period, the Hardware will be free from material defects in design, material and workmanship.
4.5 Subject to Condition 4.7, if the Hardware does not comply with the warranty in Condition 4.4, We will at Our option, repair or replace the defective Hardware, at Our cost, provided that:
4.5.1 You give Us notice in writing within a reasonable time of discovery that some or all of the Hardware does not comply with the warranty set out in Condition 4.4;
4.5.2 We are given reasonable opportunity to examine such Hardware; and
4.5.3 You return such Hardware to Our place of business at Our cost, if required by Us.
4.6 If We repair or replace defective hardware, these Conditions will apply to the repaired or replaced Hardware and the Warranty Period in relation to the Hardware that is repaired or replaced will be extended by a period of thirty (30) days.
4.7 We will not be responsible for any non-compliance of the Hardware with the warranty in Condition 4.4 as a result of Hardware Misuse.
4.8 Your remedies in Condition 4.5 constitute Your sole and exclusive remedy if the Hardware does not comply with the warranty in Condition 4.4
4.9 You will be responsible for the cost and expense of all repairs to or replacement of, the Hardware, as a result of Hardware Misuse and You will indemnify Us and hold Us harmless from all loss of and damage to the Hardware as a result of Hardware Misuse.
DELIVERY

4.10 We will use reasonable endeavours to deliver Ordered Hardware to the Delivery Location on the applicable Delivery Date. Each Delivery of Ordered Hardware will be accompanied by a Delivery Note.
4.11 We may Deliver Ordered Hardware by instalments. Any delay in Delivery or defect in an instalment will not entitle You to cancel any other instalment.
4.12 Delivery of Ordered Hardware will be complete upon unloading of the Ordered Hardware at the Delivery Location, whereupon You will complete and provide to Us or Our nominated carrier, written confirmation of Delivery.
4.13 Delivery Dates quoted by Us or Our nominated carrier are approximate only, and the time of Delivery will not be of the essence.
4.14 If You fail to take Delivery of Ordered Hardware, then except where such failure is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Agreement in respect of the Hardware:
4.14.1 Delivery of the Hardware will be deemed to have been completed at 9.00 am (UK time) on the Business Day following the day on which We notified You that the Hardware was ready for Delivery; and
4.14.2 We will store the Hardware until Delivery to You actually takes place, and may charge You for all related costs and expenses (including insurance).
4.15 If five (5) Business Days after We notified You that Ordered Hardware was ready for Delivery, You have not taken Delivery of the Ordered Hardware, We may resell or otherwise dispose of all or part of the Ordered Hardware and may charge You for related storage costs and expenses, and selling costs.
PACKAGING MATERIALS

4.16 If We identify on a Delivery Note that packaging materials are to be returned to Us, You will, at Our cost, return the packaging materials to Us or make the packaging materials available for collection by Us or Our nominated carrier, at such times as We may reasonably require. You will be liable for any loss of or damage to, packaging materials that We identify on a Delivery Note are to be returned to Us.
FAILURE TO DELIVER

4.17 Subject to Condition 4.18, if We fail to Deliver the Hardware to You, We will at Our discretion and expense use reasonable endeavours to correct any such failure to Deliver promptly or provide You with a Work-Around.
4.18 We will not be responsible for any failure to Deliver the Hardware to You as a result of, a failure by You to provide adequate instructions in relation to Delivery, or a failure by You to provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
4.19 Your remedies in Condition 4.17 constitute Your sole and exclusive remedy if We fail to Deliver Hardware to You.
RISK AND TITLE

4.20 The risk of loss, theft, damage or destruction of Hardware will pass to You on Delivery.
4.21 Title to the Hardware title will pass to You on payment in full cleared funds, but You will be permitted to use such Hardware in the ordinary course of Your business before title to the Hardware has passed.
5. INSTALLATION SERVICES

GENERAL
5.1 If Installation is selected in the Order Form. We will provide the Installation on and subject to the terms of the Agreement.
WARRANTY

5.2 We warrant that the Installation will be provided with reasonable skill and care.
5.3 If the Installation does not comply with Condition 5.2, We will at Our discretion and expense use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
5.4 The remedies in Condition 5.3 constitutes Your sole and exclusive remedy for any breach of Condition 5.2.
DELIVERY

5.5 We will use reasonable endeavours to meet any performance dates You and Us agree for the Installation, but any such dates are approximate only, and time will not be of the essence.
5.6 We will not be responsible for any non-compliance of the Installation with the warranty in Condition 5.2 or any failure to provide the Installation, as a result of, a failure by You to provide adequate instructions in relation to the Installation, or a failure by You to provide all requisite materials, facilities, access and suitable working conditions to enable the Installation to be carried out safely and expeditiously.
6. SUPPORT SERVICES

GENERAL
6.1 If Support Services are selected in the Order Form. The Support Services will commence on the Effective Date and will continue for the Initial Support Term and, thereafter, will automatically renew for successive periods of twelve (12) months (each a “Renewal Period”), unless and until terminated in accordance with Condition 18.
REMOTE ACCESS

6.2 We may from time to time provide the Support Services or respond to a call, incident, issue or ticket by remote access and/or remote diagnosis (where We deem it appropriate). You will provide all necessary dedicated direct dial telephone, VPN access, access to Your System, and other communication facilities, as We may require to enable such remote access and/or remote diagnosis.
PHYSICAL ACCESS

6.3 We may from time to time provide the Support Services or respond to a call, incident, issue or ticket by Us or Our Personnel physically accessing Your Systems or Your premises. You will provide all necessary access to Your facilities and Your System and other communication facilities as We may require to enable such physical access.
STANDARD SUPPORT

6.4 We will, in consideration of the Standard Support Fees, provide You with Our Standard Support Services. The Standard Support Services will conform in all material with Our Standard Support Services Policy in effect at the time that the Standard Support Services are provided.
6.5 We may amend the Standard Support Services Policy in Our sole and absolute discretion from time to time.
PREMIUM SUPPORT

6.6 We will, in consideration of the Premium Support Fees, provide You with Our Premium Support Services. The Premium Support Services will conform in all material respects with Our Premium Support Services Policy in effect at the time that the Premium Support Services are provided.
6.7 We may amend the Premium Support Services Policy in Our sole and absolute discretion from time to time.
ENHANCED SUPPORT

6.8 We will, in consideration of the Enhanced Support Fees, provide You with Our Enhanced Support Services. The Enhanced Support Services will conform in all material respects with Our Enhanced Support Services Policy in effect at the time that the Enhanced Support Services are provided.
6.9 We may amend the Enhanced Support Services Policy in Our sole and absolute discretion from time to time.
UPGRADING SUPPORT

6.10 You may from time to time upgrade to additional Premium or Enhanced Support Services. If You wish to upgrade to additional Premium or Enhanced Support Services, You will notify Us in writing (“Support Upgrade Request”). Each Support Upgrade Request will identify the quantity of Premium or Enhanced Support Services to be provided by Us and the Authorised Users to which the Premium or Enhanced Support Services relate.
6.11 We will evaluate the Support Upgrade Request and provide You with Our approval or rejection as soon as reasonably practicable.
6.12 If We approve the Support Upgrade Request (in whole or in part), We will provide the relevant Premium or Enhanced Support Services on and subject to the terms of the Agreement as soon as reasonably practicable following Our approval of Your request and You will pay to Us the applicable Support Fees for such Premium or Enhanced Support Services in accordance with the applicable Payment Terms.
REMOVING SUPPORT

6.13 You are not entitled at any time during the Support Term to reduce Premium or Enhanced Support Services to Standard Support Services or otherwise remove or cancel Premium or Enhanced Support Services.
YOUR REMEDIES

6.14 If the Support Services do not comply with Condition 6.4, 6.6 or Condition 6.8 (as the context requires), We will at Our discretion and expense use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
6.15 The remedies in Condition 6.14 constitutes Your sole and exclusive remedy for any breach of Conditions 6.4 and/or 6.6 and/or 6.8.
7. PROFESSIONAL SERVICES

GENERAL
7.1 If We are required to provide or You request that We provide, Professional Services. We will, in consideration of the Professional Services Fee, provide the Professional Services on and subject to the terms of the Agreement.
WARRANTY

7.2 We warrant that the Professional Services will be provided with reasonable skill and care.
7.3 If the Professional Services does not comply with Condition 7.2, We will at Our discretion and expense use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
7.4 The remedies in Condition 7.3 constitutes Your sole and exclusive remedy for any breach of Condition 7.2.
DELIVERY

7.5 We will use reasonable endeavours to meet any performance dates You and Us agree for the Professional Services, but any such dates are approximate only, and the time of performance will not be of the essence.
7.6 Any number of Man Days included as part of this agreement are estimated in good faith and no guarantee is made as to the specific outcomes to be achieved in any number of Man Days.
7.7 You will provide sufficient customer Project Team resource from within your organisation of appropriate skills and delegated authority to enable your delivery obligations to be completed in alignment with the agreed Project Plan
7.8 Your Project Obligations will include responsibility for approval of blueprint documents, ownership of data quality from incumbent systems and its translation into Mitrefinch Systems and responsibility for User Acceptance Testing and timely sign off confirming acceptance.
7.9 We will not be responsible for any non-compliance of the Professional Services with the warranty in Condition 7.2 or any failure to provide the Professional Services, as a result of, a failure by You to comply with Conditions 7.7 or 7.8, failure to provide adequate instructions in relation to the Professional Services (or subject matter thereof), or a failure by You to provide all requisite materials, facilities, access and suitable working conditions to enable the Professional Services to be carried out safely and expeditiously.
MAN DAY RATES

7.10 The Man Day Rates are the rates chargeable by Us in relation to a man day, being a six (6) hour professional day (“Man Day”).
7.11 When performing Professional Services under the Man Day Rates, We will use reasonable endeavours to ensure that where practicable, We deploy the most appropriate resource available to the required tasks.
7.12 The amount charged will be reduced on a pro rated basis if the relevant member of Our Personnel does not work the full six (6) hour professional day, but will be subject to a minimum charge equal to half (½) a Man Day where Our Personnel works less than three (3) hours, and the rate and amount chargeable may be increased if the applicable person is required to work in excess of a six (6) hour professional day.
EXPENSES

7.13 The Man Day Rates for Professional Services are exclusive of Expenses. If Professional Services are provided to You, We will be entitled to charge You for Expenses incurred by Us and Our Personnel engaged in connection with the Professional Services.
CANCELLATION OF PROFESSIONAL SERVICES MAN DAYS

7.14 If You cancel any scheduled Man Day where this is due to circumstances outside of Our control, or if We cancel a scheduled Man Day as a result of Your failure to comply with Condition 7.7 or 7.8, a cancellation fee may be payable on a scale determined by the applicable notice period, as follows:
7.14.1 where cancellation is made less than five (5) clear Business Days before the scheduled Man Day, a charge of one hundred per cent (100%) of the prevailing Man Day Rate will be made; or
7.14.2 where cancellation is made more than five (5) clear Business Days but less than fifteen (15) clear Business Days before the scheduled Man Day, a charge of fifty per cent (50%) of the prevailing Man Day Rate will be made,
(each a “Cancellation Fee”), and where cancellation is made more than fifteen (15) clear Business Days before the scheduled Man Day, no Cancellation Fee will be payable by You to Us.
7.15 We may invoice You for any Cancellation Fees at any time.
7.16 You will pay each invoice submitted by Us in relation to Cancellation Fees in full and cleared funds to a bank account nominated in writing by Us, within thirty (30) days of the date of the invoice.
8. LICENCES, PERMISSIONS AND CONSENTS

8.1 We will obtain and maintain all necessary licences, consents, and permissions necessary for the performance of Our obligations under the Agreement.
8.2 You will obtain and maintain all necessary licences, consents, and permissions necessary for You to perform Your obligations under the Agreement and for You to receive the Software Licence and Support Services.
9. INTERNET AND INTERRUPTIONS

9.1 Notwithstanding Conditions 3 and 6, We:
9.1.1 do not warrant that Your use of the Software Licence or Support Services will be uninterrupted or error-free or that the Software Licence or Support Services or the information obtained by You through them will meet Your requirements; and
9.1.2 are 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 You acknowledge that the Software Licence and Support Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10. INSPECTIONS

10.1 You will grant to Us, Our agents and representatives, and to any statutory or regulatory auditors of Us, the right of access to Your premises, Your System and Your personnel as We may require during Normal Business Hours on providing reasonable advance written notice and not more frequently than twice per Year, in order to:
10.1.1 establish the name and password of each Authorised User;
10.1.2 verify that You are complying with the terms of the Agreement; and/or
10.1.3 fulfil any request by any Regulatory Body in the course of carrying out its regulatory functions,
an “Inspection”.
10.2 We will use reasonable endeavours to ensure that Inspections are conducted in a manner as to not substantially interfere with the normal conduct of Your business. We will bear Our own costs in relation to any Inspection.
10.3 If any Inspection by or on behalf of Us demonstrates any:
10.3.1 under-payment of Fees to Us, without prejudice to any of Our other rights and remedies, You will pay to Us an amount equal to the underpayment by reference to the Fees in the Order Form within five (5) Business Days of the Inspection;
10.3.2 non-compliance (other than under-payment which is dealt with under Condition 10.3.1) by You of Your obligations pursuant to the Agreement, without prejudice to any of Our other rights and remedies, You will promptly remedy the cause of such non-compliance; and
10.3.3 fraud or material or persistent breaches are found, We may require that You promptly refund Us all reasonable costs and expenses relating to such Inspection (including the reasonable costs of third party advisers).
11. YOUR DATA

OWNERSHIP
11.1 We acknowledge that Your Data is the property of You and that You reserve all intellectual property rights which may, at any time, subsist in Your Data.
11.2 You acknowledge that You have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
11.3 If at any time Us or any of Our Personnel are deemed to be the first owner of any intellectual property right in or in relation to, Your Data, We will as soon as reasonably practicable assign or procure the assignment of, all such intellectual property rights to You, and will do such things, and will procure that any of Our Personnel assigns and does all such things, as We consider reasonably necessary to give effect to this Condition.
USE AND BACK-UP OF YOUR DATA

11.4 We will only store, copy or use Your Data to the extent necessary to perform Our obligations under the Agreement.
BACK-UP OF YOUR DATA
11.5 We will follow archiving procedures for Your Data as set out in Our IT and Data Policy.
LOSS, CORRUPTION OR DEGRADATION OF, YOUR DATA
11.6 In the event that Your Data is corrupted or lost or degraded so as to be unusable, as a result of Us or Our Personnel, Your sole and exclusive remedy will be for Us to use reasonable commercial endeavours to restore or procure the restoration of Your Data that is corrupted, lost or degraded so as to be useable as soon as reasonably practicable from the latest back-up of Your Data maintained by Us in accordance with the archiving procedure described in Our IT and Data Policy.
11.7 We will not be responsible for any loss, corruption, damage, alteration or disclosure of Your Data caused by any third party (except Our Personnel that are engaged by Us to perform services related to Your Data).
PRIVACY AND SECURITY OF YOUR DATA

11.8 We will, in performing Our obligations under the Agreement, comply with Our IT and Data Policy, which includes details of Our compliance with ISO 27001.
PROCESSING OF YOUR DATA

11.9 In respect of any Personal Data We Process on Your behalf when performing Our obligations under the Agreement, You and Us hereby agree that You will be the Data Controller and We will be a Data Processor and in any such case:
11.9.1 We will Process the Personal Data solely on Your documented instructions (including as set out in the Agreement), for the purposes of providing the Support Services.
11.9.2 We will take all measures required by Article 32 of the GDPR to ensure the security of the Personal Data;
11.9.3 We will take reasonable steps to ensure the reliability of Our Personnel who may have access to the Personal Data, and their treatment of the Personal Data as Confidential Information;
11.9.4 We will promptly, and in any case within five (5) Business Days, notify You of any communication from a Data Subject regarding the Processing of their Personal Data, or any other communication (including from a Regulatory Body) of which We are aware, relating to either party’s obligations under the Data Protection Laws in respect of the Personal Data;
11.9.5 We will notify You without undue delay upon becoming aware of any Personal Data Breach;
11.9.6 We will provide commercially reasonable assistance to You on request in relation to (i) any communication received under Condition 11.9.4; and (ii) any Personal Data Breach, including by implementing appropriate technical and organisational measures;
11.9.7 You acknowledge and agree that We are generally authorized to appoint third parties to Process the Personal Data (“Sub-Processor”), subject to notifying You about our Sub-Processors and otherwise meeting the conditions set out in Article 28 (2) and (4) of the GDPR;
11.9.8 You acknowledge and agree that the Personal Data may be transferred or stored outside the European Economic Area or the country where You and the Authorised Users are located in order to carry out the Software Licence and Our other obligations under the Agreement. We will take such steps as are necessary to ensure the Processing is in accordance with Data Protection Laws;
11.9.9 We will provide You, upon request, with all information reasonably required to demonstrate compliance with Our obligations under this Condition 11.9, including permitting You, on reasonable prior notice, and no more than on one occasion in any twenty-four (24) month period (except in the event of a Personal Data Breach), to inspect and audit the facilities used by Us to Process the Personal Data;
11.9.10 We will cease Processing the Personal Data upon the termination or expiry of the Agreement and, upon Your request, either return to You (in accordance with Condition 11.11) or securely delete the Personal Data
11.9.11 You will ensure that You are entitled to transfer the relevant Personal Data to Us so that We may use, Process and transfer the Personal Data in accordance with the Agreement and Applicable Law, on Your behalf; and
11.9.12 You will ensure that all relevant Data Subjects have been informed of, and, where required, have given their consent to, such use, Processing, and transfer as required by all applicable Data Protection Legislation.

MONITORING
11.10 You acknowledge and agree that We may from time to time monitor Your use of the Software Licence and Support Services and capture Your Data in relation to Your use of the Software Licence and Support Services, including through the use of Google Analytics.
RETURN OF YOUR DATA
11.11 If on termination of the Agreement You require Us to return Your Data to You (including Your Data that resides on or within Our Software or Our systems), You will notify Us in writing and We will use reasonable commercial endeavours to deliver to You, to the extent We are able, the then most recent back-up of Your Data that is in the possession of Us, subject to You having paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and You and Us agreeing the reimbursement of Our costs and reasonable expenses in relation to the retrieval and return of Your Data.
12. YOUR OBLIGATIONS
GENERAL
12.1 You will:
12.1.1 provide Us with all necessary:
12.1.1.1 co-operation requested by Us in relation to the Agreement; and
12.1.1.2 information as may be required by Us in order to provide any Installation, the Software Licence or Support Services, including but not limited to Your Data, security access information and configuration services;
12.1.2 comply with all Applicable Laws with respect to Your activities under the Agreement;
12.1.3 carry out all Your responsibilities set out in Agreement in a timely and efficient manner and in accordance with Conditions 7.7 and 7.8; and
12.1.4 ensure that Your network and Your System comply with the relevant specifications provided by Us from time to time.
NON-PERFORMANCE
12.2 Without prejudice to Our other rights and remedies, the non-performance or delay in performance of Our obligations under the Agreement will be excused if and to the extent that such non-performance or delay in performance results from Your failure to comply with Your obligations in Condition 12.1.
13. FEES AND PAYMENT
FEES
13.1 The Hardware Fees, Licence Fees, Support Fees and Professional Services fees payable by You to Us are described in the Order Form. The Man Day Rates for Professional Service are described in the Rate Card.
PAYMENT TERMS
13.2 You will pay undisputed Licence Fees, Hardware fees, Support Fees and Professional Services Fees to Us in accordance with the applicable Payment Terms.
FIXED FEES
13.3 Your Support Fees during the Support Term, are fixed, unless the extraordinary circumstances in Condition 3.7 apply.
13.4 Your Support Fees during any Renewal Period may be increased in accordance with Condition 13.17 and/or if the extraordinary circumstances in Condition 13.18 apply.
13.5 Professional Services Fees are calculated by reference to the then current Man Day Rates in the Rate Card (unless otherwise agreed between You and Us in writing) and any associated Expenses. We may amend the Rate Card in Our discretion from time to time.
DISPUTED INVOICES
13.6 You may only withhold payment of bona fide disputed Fees (or elements of the Fees which are in bona fide dispute) where We have not performed Our obligations in relation to such Fees, in accordance with the terms of the Agreement, and You have notified Us of this within fourteen (14) days of the date of the relevant invoice. You will not be entitled to withhold payment after such date.
13.7 If You withhold any Fees, You must notify Us in accordance with Condition 13.6 and will give reasonable details to Us as to which elements of the Fees are disputed and the reason for such withholding.
13.8 If any portion of an invoice is disputed by You pursuant to Condition 13.7, then, We may (at Our sole election) either:
13.8.1 require You to pay the undisputed amount of the invoice in accordance with the applicable Payment Terms; or
13.8.2 issue two (2) invoices, one (1) in respect of the disputed amount and the other in respect of the undisputed amount,
and You will pay the invoice for the undisputed amount in accordance with the applicable Payment Terms, and You and Us (each acting reasonably and in good faith) will seek to resolve the dispute in respect of the disputed amount as soon as reasonably practicable thereafter.
NON-PAYMENT
13.9 If We have not received payment of undisputed Fees within thirty (30) days after the due date for payment (or date of resolution of any dispute in relation to Fees disputed pursuant to Condition 13.8), and without prejudice to any other rights and remedies of Us, We may:
13.9.1 disable Your password, account and access or require You to disable Your password, account and block Your access, to all or part of the Software Licence, without liability to You, and We will be under no obligation to provide any Software Licence while any invoice remains unpaid; and/or
13.9.2 suspend performance of all or part of an Installation and/or the Support Services, without liability to You, and We will be under no obligation to provide any Installation or Support Services while any invoice remains unpaid; and
13.9.3 charge interest on the late payment of any undisputed Fees properly invoiced which will accrue daily from the due date to the date of actual payment on any overdue amounts under the Agreement (whether before or after judgment) at the rate of four per cent (4%) per annum above the base rate of NatWest Bank plc for the time being in force.
13.10 If We have not received payment of undisputed Hardware Fees within thirty (30) days after the due date for payment (or date of resolution of any dispute in relation to Fees disputed pursuant to Condition 13.8), and without prejudice to any other rights and remedies of Us, We may require that:
13.10.1 You return the Hardware to Us, within such period as We may reasonably require. The cost of the return of the Hardware will be borne by You; or
13.10.2 You make the Hardware available for collection by Us or Our nominated carrier, at such times as We may reasonably require. The cost of collection by Us or Our nominated carrier’s collection of the Hardware will be borne by Us.
13.11 If You do not return the Hardware to Us or make the Hardware available for collection by Us, We may enter any premises at which the Hardware is located and You hereby waive any and all damages occasioned by such taking of possession.
13.12 Without prejudice to any other rights or remedies of Us, You will pay to Us on demand any costs and expenses incurred by Us in recovering Hardware and in collecting any sums due under the Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
SUSPENSION
13.13 If, We:
13.13.1 disable Your password, account and access or You are required by Us to disable Your password, account and access, to all or part of the Software Licence; and/or
13.13.2 suspend performance of all or part of an Installation and/or the Support Services,
provided that such disabling or suspension is in accordance with this Agreement, You will remain responsible for all Fees and other charges You incur during the period of suspension.
CURRENCY
13.14 All amounts and fees stated or referred to in the Agreement will be payable in UK pound sterling.
NON-REFUNDABLE AND NON-CANCELLABLE
13.15 The Software Licence Fees, Hardware Fees, Support Fees and Professional Services Fees (if paid upfront) payable by You to Us are non-cancellable and non-refundable, save as expressly set out in the Agreement.
VAT
13.16 All Fees and amounts are exclusive of value added tax, which will be added to Our invoice at the appropriate rate.
FEE INCREASES
13.17 We may increase the Support Fees at the start of each Renewal Period by up to five per cent (5%) more than the Support Fees in place immediately prior to the conclusion of the immediately preceding Renewal Period.
ADDITIONAL CHARGES
13.18 If Support Services are provided in circumstances where a reasonably skilled and competent operator would have judged Your requirement to have been unnecessary or You exceed Our Fair Use Policy, We will be entitled to levy additional charges on a Man Day Rate basis.
14. IP RIGHTS
14.1 You acknowledge and agree that Us and Our licensors own all intellectual property rights in and to, the Software, Software Licence and Support Services.
14.2 The Agreement does not grant You any rights to, under or in, any intellectual property rights (whether registered or unregistered) or any other rights or licences in respect of the Software, Software Licence or Support Services, unless expressly set out in the Agreement.
14.3 We confirm that We have all the rights in relation to the Software, Software Licence and the Support Services, that are necessary to grant all the rights We purport to grant under, and in accordance with, the terms of the Agreement.
15. CONFIDENTIALITY
15.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information will not be deemed to include information that:
15.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
15.1.2 was in the other party’s lawful possession before the disclosure;
15.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
15.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
15.2 Subject to Condition 15.4, You and Us will 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 the Agreement.
15.3 You and Us will 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 the Agreement.
15.4 You and Us may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, provided that, to the extent it is legally permitted to do so, You or Us (as the context requires) gives the other as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 15.4, takes into account the reasonable requests of the other in relation to the content of such disclosure.
15.5 Neither You or Us will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
15.6 You acknowledge that details of the Software Licence and Support Services, and the results of any performance of the same, constitute Our Confidential Information.
15.7 We acknowledge that Your Data is the Confidential Information of You.
ANNOUNCEMENTS
15.8 You and Us will not make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other (such consent not to be unreasonably withheld or delayed), except as required by Applicable Law or any relevant securities exchange.
15.9 The above provisions of this Condition 15 will survive termination of the Agreement, however arising.
16. IP INFRINGEMENT
OUR PROTECTION
16.1 You will indemnify Us 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 Your use of the Software, Software Licence and Support Services which is not expressly permitted by the Agreement, provided that:
16.1.1 You are given prompt notice of any such claim;
16.1.2 We provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
16.1.3 You are given sole authority to defend or settle the claim.
YOUR PROTECTION
16.2 We will defend You against any claim that the Software, Software Licence or Support Services infringe any UK copyright effective as of the Effective Date or rights in confidential information, and will indemnify You against amounts awarded against You in judgment or settlement of such claims, provided that:
16.2.1 We are given prompt notice of any such claim;
16.2.2 You provide reasonable co-operation to Us in the defence and settlement of such claim, at Our expense; and
16.2.3 We are given sole authority to defend or settle the claim.
16.3 In the defence or settlement of any claim, We may procure the right for You to continue using, replace or modify the Software, Software Licence or Support Services (as the context requires) so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on five (5) Business Days’ notice to You without any additional liability or obligation to pay damages or other additional costs to You.
16.4 In no event will Us or Our Personnel be liable to You to the extent that the alleged infringement is based on:
16.4.1 a modification of the Software, Software Licence or Support Services by anyone other than Us; or
16.4.2 Your use of the Software, Software Licence or Support Services in a manner contrary to the instructions given to You by Us; or
16.4.3 Your use of the Software, Software Licence or Support Services after notice of the alleged or actual infringement from Us or any appropriate authority.
16.5 The foregoing and Condition 16.2 states Your sole and exclusive rights and remedies, and Our entire obligations and liability, for infringement of any intellectual property rights or right of confidentiality.
17. LIABILITY
UNLIMITED LIABILITY
17.1 Nothing in the Agreement will exclude or limit either party’s liability:
17.1.1 for death or personal injury caused by its (or its agent’s or sub-contractor’s) negligence or for fraud or fraudulent misrepresentation;
17.1.2 for any fraudulent or dishonest act or omission by either party or any member of that party’s Group or its officers, employees, agents or sub-contractors; or
17.1.3 that cannot, as a matter of law, be limited or excluded
LIMITATION OF LIABILITY
17.2 Subject to Condition 17.1 and Condition 17.3:
17.2.1 We will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
17.2.1.1 any Excluded Losses, in each case whether direct or indirect (and regardless of whether We have been advised of the possibility of such losses or damages); or
17.2.1.2 any indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
17.2.2 Our total aggregate liability in contract (including in respect of the indemnity at Condition 16.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement will be limited to the greater of:
17.2.2.1 ten thousand pounds sterling (£10,000); and
17.2.2.2 one hundred and twenty five per cent (125%) of the total Licence Fees and Support Fees paid during the twelve (12) months immediately preceding the date on which the claim arose.
17.3 Except as expressly and specifically provided in the Agreement:
17.3.1 You assume sole responsibility for results obtained from the use of the Software Licence and Support Services by You, and for conclusions drawn from such use. We will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Software Licence and Support Services, or any actions taken by Us at Your direction;
17.3.2 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 the Agreement; and
17.3.3 the Software Licence and Support Services are provided to You on an “as is” basis.
18. TERMINATION
MUTUAL TERMINATION FOR CONVENIENCE
18.1 You and Us may terminate the Support Services on providing not less sixty (60) days’ prior written notice before the end of the Initial Support Term or any Renewal Period, in which case the Agreement will terminate upon the expiry of the applicable Initial Support Term or Renewal Period.
MUTUAL TERMINATION FOR CAUSE
18.2 Without affecting any other right or remedy available to You or Us, You or Us may terminate the Agreement with immediate effect by giving written notice to the other if:
18.2.1 the other party commits a material breach of any term of the Agreement which is incapable of remedy;
18.2.2 the other party commits a material breach of any term of the Agreement which is capable of remedy and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
18.2.3 the other party suffers an Insolvency Event.
OUR TERMINATION FOR CAUSE
18.3 Without affecting any other right or remedy available to Us, We may terminate the Agreement with immediate effect by giving written notice to You if:
18.3.1 You fail to pay any amount due under the Agreement on the due date for payment and such amount remains in default not less than thirty (30) days after being notified by Us in writing to make such payment; or
18.3.2 there is a change of Control of You.
19. CONSEQUENCES OF TERMINATION
GENERAL
19.1 On termination of the Agreement:
19.1.1 by Us pursuant to Condition 18.2 or 18.3 all licences granted under the Agreement will immediately terminate and You will immediately cease all use of the Software, Software Licence and the Support Services;
19.1.2 for any reason You and Us will return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other; and
19.1.3 for any reason any rights, remedies, obligations or liabilities of You and Us 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 will not be affected or prejudiced.
COMMITTED FEES
19.2 If the Agreement is terminated by:
19.2.1 Us pursuant to Conditions 18.2 or 18.3, You will be liable to Us for and will pay to Us, the Committed Fees. You will pay an amount equal to all Committed Fees due and payable by You to Us within ten (10) Business Days of the date of termination of the Agreement; and
19.2.2 You pursuant to Condition 18.1 or 18.2 or Us pursuant to Condition 18.1, You will not be liable to Us for and will not be required to pay to Us, the Committed Fees. You will pay an amount equal to all fees due and payable by You to Us as at the date of termination of the Agreement within ten (10) Business Days of the date of termination of the Agreement.
20. FORCE MAJEURE
We will have no liability to You under the Agreement if We are prevented from or delayed in performing Our obligations under the Agreement, or from carrying on Our business, by acts, events, omissions or accidents beyond Our reasonable control, including, strikes, lock-outs or other industrial disputes (whether involving the workforce of Us 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 You are notified of such an event and its expected duration (“Force Majeure Event”).
21. CONFLICT
If there is an inconsistency between any of the provisions these Conditions and the remainder of the Agreement, these Conditions will prevail.
22. VARIATION
No variation of the Agreement will be valid unless it is in writing and signed by or on behalf of You and Us.
23. WAIVER AND CUMULATIVE REMEDIES
23.1 The rights and remedies of You and Us under, or in connection with, the Agreement may be waived only by express written notice to the other. Any waiver will apply only in the instance, and for the purpose for which it is given.
23.2 No right or remedy under, or in connection with, the Agreement will be precluded, waived or impaired by:
23.2.1 any failure to exercise or delay in exercising it;
23.2.2 any single or partial exercise of it;
23.2.3 any earlier waiver of it (whether in whole or in part); or
23.2.4 any of the above in relation to any other right or remedy (be it of similar or different character).
23.3 The rights and remedies arising under, or in connection with, the Agreement are cumulative and, except where otherwise expressly provided in the Agreement, do not exclude any rights or remedies provided by Applicable Law or otherwise.
23.4 Any termination of the Agreement and/or parts thereof does not affect any accrued rights or liabilities of You or Us and nor does it affect the coming into force or the continuance in force of any provision of the Agreement that is expressly or by implication intended to come into or continue in force on or after such termination.
24. SEVERANCE
24.1 If any provision of the Agreement is or becomes illegal, invalid or unenforceable, in any respect:
24.1.1 it will not affect or impair the legality, validity or enforceability of any other provision of the Agreement; and
24.1.2 the parties will use reasonable endeavours to negotiate in good faith with a view to replacing it with a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision but differing from the replaced provision as little as possible.
24.2 If any illegal, invalid or unenforceable provision would be legal, valid or enforceable if some part of it were deleted, such provision will apply with the minimum modifications necessary to make it legal, valid or enforceable.
25. ENTIRE AGREEMENT
25.1 The Agreement constitutes the entire agreement and understanding between You and Us in respect of its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding, or undertaking (in each case whether written or oral) given or made before the date of the Agreement by or on behalf of the parties and relating to its subject matter.
25.2 You and Us confirm that it has not relied upon, and will have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to the Agreement) unless that warranty, statement, representation, understanding or undertaking is expressly set out in the Agreement.
25.3 Subject to Condition 25.4, You and Us will not be entitled to the remedies of rescission or damages for misrepresentation arising out of, or in connection with, any agreement, warranty, statement, representation, understanding or undertaking whether or not it is set out in the Agreement.
25.4 Nothing in the Agreement will restrict or exclude any liability for (or remedy in respect of) fraud or fraudulent misrepresentation.
26. ASSIGNMENT AND OTHER DEALINGS
26.1 You will not, without the prior written consent of Us, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under the Agreement.
26.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under the Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 Nothing in the Agreement is intended to create a partnership or joint venture or legal relationship of any kind between You and Us that would impose liability upon You or Us for the act or failure to act of the other, or to authorise You or Us to act as agent for the other. Save where expressly stated in the Agreement, neither You or Us will have authority to make representations, act in the name or on behalf of, or otherwise to bind, the other.
28. NON-EXCLUSIVE
The Agreement will not prevent Us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar or identical to the Software Licence or Support Services provided under the Agreement.
29. THIRD PARTY RIGHTS
29.1 Except as provided in the remainder of this Condition 29, a person who is not a party to the Agreement will have no right under the Contracts (Rights of Third Parties) Act 1999 (the “CRPTA”) to enforce any term of the Agreement. This Condition 29 does not affect any right or remedy of any person which exists, or is available, other than under CRTPA.
29.2 We may enforce any term of the Agreement on behalf of a member of Our Group. Without prejudice to the foregoing, any member of Our Group (other than Us) may enforce any term of the Agreement which is expressly or implicitly intended to benefit it. Any Regulatory Body may enforce the terms of Condition 10.1.
30. ANTI-BRIBERY COMPLIANCE
30.1 You and Us will:
30.1.1 comply with all Applicable Laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
30.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
30.1.3 have and will maintain in place throughout the term of the Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
30.1.4 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by the party making the report in connection with the performance of the Agreement.
30.2 For the purpose of this Condition 30, the meaning of adequate procedures and foreign public official and whether a person is associated with another person will be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
31. ANTI-SLAVERY
31.1 Neither You or Us will engage in any practice that amounts to:
31.1.1 slavery or servitude (each as construed in accordance with Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, as amended);
31.1.2 forced or compulsory labour (as defined by the International Labour Organisation’s Forced Labour Convention 1930 (No. 29) and Protocol);
31.1.3 human trafficking; or
31.1.4 arranging or facilitating the travel of another person with a view to that person being exploited.
31.2 You and Us will and will procure that its officers, employees, agents, sub-contractors and any other persons who perform services for or on behalf of it in connection with the Agreement will:
31.2.1 comply with all applicable laws relating to slavery, servitude, forced or compulsory labour or human trafficking (“Anti-Slavery Laws”);
31.2.2 not do or omit to do any act or thing which constitutes or may constitute an offence under any Anti-Slavery Law;
31.2.3 not knowingly employ or engage in any practices which constitute or may constitute an offence under any Anti-Slavery Law and not knowingly appoint or contract with any person who has been convicted of or prosecuted in any jurisdiction in relation to an offence or alleged offence under any Anti-Slavery Law; and
31.2.4 not commit any act or omission which causes or could cause the other party to breach, or commit an offence under, any Anti-Slavery Law.
31.3 You and Us will provide the other with such assistance and information as it reasonably requires from time to time to:
31.3.1 perform any activity required by any government, regulatory entity or agency in any relevant jurisdiction for the purpose of compliance with any applicable Anti-Slavery laws;
31.3.2 prepare a slavery and human trafficking statement as required by section 54 of the Modern Slavery Act and to include the matters referred to in section 54(5) of that Act; and

31.3.3 to conduct due diligence and to measure the effectiveness of the steps it is taking or wishes to ensure that modern slavery practices are not taking place in its supply chain.
31.4 You and Us will promptly notify the other party of any breach of Conditions 31.1 to 31.3 (inclusive).
32. SET-OFF
All amounts due from You to Us under or in connection with the Agreement will be paid in full without any set-off, counterclaim, deduction or withholding (other than any admitted credit or overpayment or any deduction or withholding of taxes required by Applicable Law).
33. NOTICES
33.1 Any notice required to be given under the Agreement will be in writing and will 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 Agreement front sheet, or such other address as may have been notified by that party for such purposes.
33.2 A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9.00 am (UK time) on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post.
34. GOVERNING LAW
The Agreement 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) will be governed by and construed in accordance with the law of England and Wales.
35. JURISDICTION
You and Us irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
VERSION 5 JUNE 2019