Power EPOS Systems Ltd (“PES”) is incorporated in England under company number 14359557 and has a registered office at 11 Park Place, Leeds, England, LS1 2RX

This is a legal document; please read the terms carefully.

This document contains the terms and conditions that govern your access to and use of the Services and forms part of any Agreement incorporating the use of the said Services between Power EPOS (‘Supplier’, ‘we’, ‘us’ or ‘our’) and you or the entity you represent (‘Client’, ‘you’, ‘the user’) (‘Party’, together the ‘the Parties’).

By using PES Cloud EPOS, and/or any associated PES hospitality management service (singularly or collectively ‘PES”) you are agreeing to these terms and conditions.

These terms and conditions shall take effect when you click an “I Accept” button or check box presented with these terms and conditions or, if earlier, the date on which you started to use any of the Services (the “Effective Subscription Date”). By complying with this paragraph you represent to us that you have lawfully capacity to enter contracts. If you are so complying on behalf of a corporate entity, you represent to us that you have full legal authority to bind that entity.

Agreed Terms

Interpretation
Definition of terms:

Agreement: the relevant document agreed between the Supplier and the Client for the supply of PES which document shall comprise a Schedule A and any and all Schedules B (all as defined below) together with these terms and conditions.

Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use PES and the Documentation (as defined below).

Business Day: any day which is not a Saturday, Sunday nor public holiday in the UK.

Business Hours: between 9am and 5pm UK time on any Business Day.

Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of either Party by another entity in a single transaction or series of transactions.

Client Data: the data input by the Client, its authorised users, or the Supplier on the Client’s behalf for the purpose of PES or facilitating the Client’s use of PES software.

Client Support: the client support service provided by the Supplier to the Client for any problem or query it has in operating PES software as detailed in the Service Level Agreement (“SLA”).

Cloud Services: the online cloud application of the software described herein accessed by the Client in order to use PES software.

Confidential Information: any information, however conveyed or presented and including but not limited to information contained in (or on) any property or Works, that relates to the business, affairs, operations, Clients, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing Party, together with all information derived by the receiving party from any such information and any other information clearly designated by either Party as being confidential to it (whether or not it is marked as confidential), or which ought reasonably be considered to be confidential.

Documentation: the documents made available to the Client by the Supplier online for the use of PES software systems.

Development Fee: the fee payable by the Client to the Supplier for the provision of any Development Service.

Development Service: any customisation or addition to PES software requested by the Client and agreed to be provided by the Supplier at additional cost.

EPoS Services: the provision of the PES EPoS application and installation of associated hardware, including any EPoS terminal, which can be used in conjunction with the Cloud Services.

Hardware: the physical components necessary to enable the Supplier to supply PES, including, but not limited to, EPoS terminals, desktop pcs, laptops, tablets, printers, network equipment and servers.

Initial Subscription Term: the initial term of the Agreement as defined in Schedule A (as defined below.

Invoice Date: the first day of each calendar month.

Payment Date: the last Friday of each calendar month.

Renewal Period: the period of any subsequent renewal as defined in Schedule A (as defined below),once the Initial Subscription Term has been completed.

Schedule A: the form provided by the Supplier to the Client detailing the specific scope and costs for the PES service to be supplied, together with any variation to these terms and conditions to be applied to the Agreement with the Client.

Schedule B: Service Order Form as provided by the Supplier to the Client detailing any additional service

Service Order Number: the unique identification number given to each Service Order Form.

Services: any service provided by the Supplier to the Client under the Agreement and detailed in associated Schedules or via the website as more particularly described in Documentation or any other website notified by the Supplier under the Agreement from time to time.

Setup: the configuration of PES Cloud and EPoS software, and hardware and its installation at any trading premises, as agreed between the Parties.

Setup Fee: the sum payable on the Effective Subscription Date to setup the account for the Client.

Setup Period: the period during which PES system is under configuration in preparation for its use by the Client and its Authorised Users.

Standard Hourly Rate: the applicable hourly rate for work conducted during Business Hours and for work conducted outside Business Hours.

Subscription: the charge for the Client and its Authorised Users to access and use PES.

Subscription Fee: the monthly fee for using PES based on the number of venues and the number of devices in which it is operating and the agreed Venue Fee (as defined hereinafter) as set out in Schedule A.

Subscription Term: the period during which the Supplier provides PES software to the Client.

Supplier’s Nominated Account: The bank account detailed on invoices issued by the Supplier.

Support: assistance provided by the Supplier to the Client in order to maximise the benefits of using PES in accordance with the relevant SLA : the fee payable by the Client to the Supplier for the provision of any additional Support above the level provided by the relevant SLA.

Support Services: additional support for PES not provided within the relevant SLA..

Venue: a Client’s hospitality site or additional operational premises.

Venue Fee: the fee agreed between the Parties payable by the Client to the Supplier based on the number and size of Client Venues permitted to use PES Cloud and EPoS.

Virus: anything 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.

Works: anything undertaken in the operation of the business of either Party.

Any section, clause and paragraph heading herein shall not affect the interpretation of these terms and conditions.

• • A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

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

• • Words in the singular shall include the plural and vice versa.

• • A reference to one gender shall include a reference to the other genders.

• • A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

• • A reference to writing or written includes email but not faxes.

• Subscription
  
  • Subject to the receipt of the Setup Fee and of the Client’s relevant information the Supplier will notify the Client when the Setup Period is complete and PES is ready for use.

• • Upon successful completion of the Setup, the Supplier hereby grants to the Client a non- exclusive, non-transferable right to permit its Authorised Users to use PES and the Documentation during the Subscription Term solely for the Client’s internal business operations.

• • In relation to the Authorised Users, the Client undertakes that:

• each Authorised User shall keep a secure password for their use of PES and Documentation, and that each Authorised User shall keep their password confidential;

• it shall maintain an up to date list of current Authorised Users and provide such list to the Supplier on written request from time to time; and

• if any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Client shall promptly disable such passwords and the Supplier shall not issue any new password to any such individual.

• • The Client shall not access, store, distribute or transmit any Virus, or any material during the course of its use of PES that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity or causes damage or injury to any person or property and the Supplier reserves the right, without liability to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

 

The Client shall not:

•  

• except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:

• • and except to the extent expressly permitted under these terms and conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of PES and/or Documentation (as applicable) in any form or media or by any means; or

• • attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of PES; or

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

• use PES and/or Documentation to provide services to third parties; or

• subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make PES and/or Documentation available to any third party except the Authorised Users, or

• attempt to obtain, or assist third parties in obtaining, access to PES and/or Documentation, other than as provided under this section 2;

• allow any device not supplied by PES to be physically attached to any PES hardware, this would include flash drives, phones, tablets or other storage devices: and

 

The Service

• • The Supplier shall, during the Subscription Term, provide PES as quantified in a Schedule A for the Client and make available the Documentation to the Client on and subject to the terms of the Agreement and SLA.

• • During Business Hours the Supplier will provide Client Support and reserves the right to charge Support Fees for PES.
    
    

• Additional Services

At the request of the Client additional Development or Support Services in association with PES may be agreed to by the Supplier. For any such service a Service Order Form with a unique Service Order Number will be completed by the Supplier and signed by both Parties and form part of a Schedule B prior to the commencement of the service. Any such service will be deemed to form part of and subject to the Agreement for the duration of any such additional service. The Supplier reserves the right to refuse a request although such right is not to be unreasonably exercised.

• Development Service

Any agreed additional requirement to customise or develop additions to PES systems will be individually defined and charged at the Supplier’s Standard Hourly Rate. The Supplier will detail the requirement and all fees on the Service Order Form for the Client’s agreement prior to the commencement of the Development Service.

• Support Service

• • • Out of normal Business Hours’ support is undertaken as part of the relevant PES SLA on a best endeavours basis and charged in accordance with section 11.

• • • Agreed additional support will be defined in accordance with section 4.

 

• Client Data
  
  • The Client shall own all rights, title and interest in and to all the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

• • The Supplier shall back up the Client Data a minimum of once every twenty-four (24) hours.

• • In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest available back-up of such Client Data maintained by the Supplier.

• • The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party.

• • Where the Supplier processes any personal data on the Client’s behalf when performing its obligations under the Agreement the Parties will record their intention that the Client shall be the data controller and the Supplier shall be a data processor and in any such case:

• the Client acknowledges and agrees that the personal data may be transferred or stored outside the UK, the EEA or the country where the Client and the Authorised Users are located in order to carry out PES and the Supplier’s other obligations under the Agreement, including those mentioned in the Supplier’s

• the Client shall ensure that it is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement on the Client’s behalf;

• the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

• the Supplier shall process the personal data only in accordance with the terms of the Agreement between the Parties and any lawful instructions reasonably given by the Client from time to time; and

• each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

• Hardware
  
  • All Hardware provided by the Supplier is supplied directly from the manufacturer or retailer unless otherwise specified.

• • All fixed EPoS units have a three-year manufacturer’s warranty, unless otherwise notified by the Supplier in writing.

• • All Hardware supplied by the Supplier comes with a 12-month manufacturer’s warranty, unless otherwise notified to the Client by the Supplier in writing.

• • Where Hardware that has been provided by the Supplier that remains under the manufacturer’s warranty needs to be repaired and/or replaced, the Supplier will provide with reasonable endeavours temporary hardware. The Supplier makes no assurances that this temporary hardware will be of the same specifications as the Hardware needing to be repaired/replaced.

• • In the event that the Supplier needs to attend the Client’s Venue to collect and/or install Hardware, a call out charge will be payable by the Client. The Client will be notified of the exact amount payable before the Supplier attends the Venue. Where at the Client’s request the Supplier attends the Client’s Venue the Client shall be deemed to have accepted the Supplier’s charges.

• • Where the Client elects to remove and/or install the Hardware themselves, the Supplier will send the replacement hardware to the Client by recorded delivery or similar method. The Client will be responsible for any delivery charge incurred by the Supplier on the Client’s behalf.

 

• Third Party Providers

The Client acknowledges that PES may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not the Supplier. The Supplier recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Any data shared with a third-party will be in accordance with the Supplier’s own privacy policy. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via PES.

• Supplier’s Obligations
  
  • The Supplier undertakes that PES will perform substantially in accordance with the Documentation and with all reasonable care and skill.

• • The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of PES systems contrary to the Supplier’s instructions, or modification or alteration of PES by any party other than the Supplier or the Supplier’s duly authorised employees, contractors or agents. If PES does not conform to the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non- conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, the Supplier:

• does not warrant that the Client’s use of PES will be uninterrupted or error-free; nor that PES, Documentation and/or the information obtained by the Client through PES will meet the Client’s requirements;

• is not responsible for any delay, delivery failure, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that PES and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;

• will not accept liability for any loss incurred by the Client while the PES site is offline; and

• • The 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 said Agreement.

• Client’s Obligations

 

In respect of the Agreement the Client shall:

• provide the Supplier with:

• • all necessary co-operation in a timely manner and

• • all necessary access to such information as may be required by the Supplier; in order to render PES, including but not limited to Client Data, security access information and configuration services;

• comply with all applicable laws and regulations with respect to its activities;

• carry out all other Client responsibilities in a timely and efficient manner. In the event of any delay in the Client’s provision of such assistance as agreed by the Parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

• ensure that the Authorised Users use PES and the Documentation in accordance with these terms and conditions and shall be responsible for any Authorised User’s breach of the Agreement;

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

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

• be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, power conditioning if required and all other problems, conditions, delays, delivery failures and all other loss or damage (including damage caused to EPoS terminals provided by the Supplier) arising from or relating to the Client’s power supply, network connections or telecommunications links or caused by the internet;

• allow the use of the Supplier’s branding at its Venues and/or on the Hardware supplied by the Supplier.

• Disaster Recovery
  
  • The Supplier commits to provide the Client with business continuity and disaster recovery as set out in its Disaster Recovery Plan.

• • In the event of a critical EPoS server failure the Supplier will send replacement parts or attend the Client’s premises and use reasonable endeavours to fix any problem or implement a workaround. If the venue is in the UK mainland this should be within 12 Business Hours of the problem being registered, or as soon as possible thereafter if travelling beyond UK mainland.

• • In the event of a power or network failure, the Supplier will not be liable for their failure to carry out its obligations under clause 10.1 above.

• Charges and Payment
  
  • The Client shall pay to the Supplier all fees itemised in Schedule A and B in accordance with this section. These include the Setup Fee, Subscription Fee, Support Fees, Hardware Fees and Development Fees.

• • The payment of the Setup Fee, any Hardware purchase costs, initial installation fee and initial Subscription Fee is due in cleared funds on or before the Effective Subscription Date.

• • The Subscription Fee is a monthly charge paid in advance based on the number and complexity of the Client’s Venues. If after the Initial Subscription Term the Client ceases to operate any Venue using PES for any reason or decides to operate a Venue without PES, the Supplier shall be given no less than three months’ written notice before any recalculation of the Subscription Fee is applied. As and when PES is implemented in any new Client Venue the monthly Subscription Fee will be increased by the value of the Venue Fee.

• • Following the initial payment made in accordance with clause 11.2 the Client shall pay in cleared funds the Subscription Fee on each Payment Date thereafter during the term of the Agreement.

• • The Client shall pay the Subscription Fee to the Supplier’s Nominated Account by either Standing Order, Direct Debit, Go Cardless or BACS payment monthly in advance on the Payment Date.

• • Upon either:

• completion of any Development Service; or

• the provision of additional Hardware, Client Support or Support Service;

the Supplier shall invoice the Client with Support Fees and/or Development Fees monthly in arrears on the Invoice Date with payment in cleared funds due on the Payment Date immediately following.

• • Where the Supplier provides the Client with additional support in accordance with the SLA, the Supplier is entitled to charge the Client for any expense reasonably incurred in the provision of such support as agreed by the Parties in writing prior to the said expenses being incurred. Expenses may include but are not limited to the cost of travel and/or accommodation.

• • If the Supplier has not received cleared funds in accordance with the amounts due herein within five (5) Business Days of the Payment Date and without prejudice to any other rights and remedies of the Supplier:

• the Supplier may, without liability to the Client, disable the Client’s and its Authorised Users’ access to all or part of PES software and the Supplier shall be under no obligation to provide any of PES and additional services while any such amount remains unpaid; and

• interest shall accrue on any such amount overdue at an annual rate equivalent to 3% over the overdraft rate applied from time to time to the Supplier by its primary bank in the UK at the date the relevant invoice or invoices was or were issued commencing on the date the payment first became due and shall continue until fully paid whether before or after legal judgment.

• • All amounts and fees stated or referred to in the Agreement:

• shall be paid in the currency specified on invoices issued by the Supplier;

• are, subject to clause 14.4(b), non-cancellable and non-refundable;

• are exclusive of but subject to value added tax at the current rate from time to time.

• • The Supplier reserves the right to charge the Client at the Supplier’s Standard Hourly Rate for any setup up work carried out under the written authorisation of the Client should the Client subsequently decide not to sign a relevant Agreement to use PES. Any such amount will be invoiced by the Supplier to the Client for immediate payment as soon as the intention not to sign is identified.

• • The Company shall be entitled to increase the Fees and/or Charges as from each anniversary of the date of this agreement. Any such increase shall in no circumstances amount to more than 2 % above any percentage change in the Retail Price Index (RPI) that may have occurred in the calendar year ending on such anniversary.

• • After the Initial Subscription Term the Supplier shall be entitled to increase any of the fees as set out in this section 11. The Supplier will notify the Client of any intended fee increase for the Services no less than 30 days in advance.

• Proprietary Rights
  
  • The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in PES, Documentation and any additional services. Except as expressly stated herein, the Agreement does not grant the Client any right to or in patents copyright database rights trade secrets, trade names, trademarks (whether registered or unregistered) or any other right or licence in respect of PES, Documentation or additional services.

• • The Supplier confirms that it has all the rights in relation to PES and the Documentation that are necessary to grant all the rights it purports to grant under and in accordance with the terms of the Agreement.

• Confidentiality
  
  • 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 shall not be deemed to include information that:

• is or becomes publicly known other than through any act or omission of the receiving Party;

• was in the other Party’s lawful possession before the disclosure;

• is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

• is independently developed by the receiving Party, which independent development can be shown by written evidence; or

• is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

• • Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other Party’s Confidential Information available to any third party, nor use the other Party’s Confidential Information for any purpose other than the implementation of the Agreement.

• • Each Party shall take all reasonable steps to ensure that the other Party’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.

• • Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

• • The Client acknowledges that details of PES and additional services and the results of any performance tests of PES or additional services constitute the Supplier’s Confidential Information.

• • The Supplier acknowledges that the Client Data is the Confidential Information of the Client.

• • This section 13 shall survive termination of the Agreement, however arising.

• Indemnity
  
  • The Client shall defend indemnify and hold harmless the Supplier against any claim, action, proceedings, loss, damages, expense and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of PES and/or Documentation, provided that:

• the Client is given prompt notice of any such claim;

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

• the Client is given sole authority to defend or settle the claim.

• • The Supplier shall, subject to clause 13.5, hold the Client, its officers, directors and employees harmless from any claim that PES or Documentation infringes any patent effective as of the date of the Agreement, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amount awarded against the Client in judgment or settlement of any such claim, provided that:

• the Supplier is given prompt notice of any such claim;

• at the Supplier’s expense the Client provides reasonable co-operation to the Supplier in the defence and settlement of any such claim; and

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

• • In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using PES, replace or modify PES so that the Client becomes non-infringing or, if no such remedy is reasonably available, terminate the Agreement on the giving of two (2) Business Days’ notice in writing to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

• • In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based upon:

• a modification of PES or Documentation by anyone other than the Supplier; or

• the Client’s use of PES or Documentation in a manner contrary to the instructions given to the Client by the Supplier; or

• the Client’s use of PES or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

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

• Limitation of Liability
  
  • Subject to the provisions of section 14, this section 15 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Client in respect of:

• any breach of the Agreement;

• any use made by the Client of any part of PES and Documentation; and

• any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
  
  Except as expressly and specifically provided in the Agreement:
  The Client assumes sole responsibility for results obtained from the use of PES and Documentation by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information instructions or scripts provided to the Supplier by the Client in connection with PES or any action taken by the Supplier at the Client’s direction; all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are to the fullest extent permitted by applicable law excluded from the Agreement; and PES and Documentation are provided to the Client on an “as is” basis.

•  

• • Nothing in the Agreement excludes the liability of the Supplier:
    for death or personal injury caused by the Supplier’s negligence; or for fraud or fraudulent misrepresentation.

• • Subject to clause 15.2 and clause 15.3:

• the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and

• the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Subscription Fees paid for the Services during the three (3) months immediately preceding the date on which the claim arose.

• Term and Termination

• • The Agreement shall unless otherwise terminated as provided in this section 16 commence on the date of the Agreement and shall continue for the Initial Subscription Term and thereafter shall be automatically renewed for the Renewal Period, unless:

• either Party notifies the other Party of termination in writing at least sixty (60) days before the end of the Initial Subscription Term and ninety (90) days before the end of any Renewal Period in which case the Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or is otherwise terminated in accordance with the provisions of the Agreement;

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

• • Either Party may terminate the Agreement without liability to the other without prejudice to any other right or remedy that may be available to either Party if:

• the other Party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that Party being notified in writing of the breach; or

• an order is made or a resolution is passed for the winding up of the other Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other Party; or

• an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other Party, or notice of intention to appoint an administrator is given by the other Party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

• a receiver is appointed of any of the other Party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other Party, or if any other person takes possession of or sells the other Party’s assets; or

• the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

• the other Party ceases, or threatens to cease, to trade; or

• there is a change of control of the other Party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or

• the other Party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

• • On termination of the Agreement for any reason:

• all licences granted under the Agreement shall immediately terminate;

• each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;

• the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination

of the Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within thirty (30) days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and

• the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

• • No rights of termination under this clause will accrue to the Client upon rejection by the Supplier of a request for additional services.

• Force Majeure

The Supplier shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the 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 Client is notified of such an event within ten (10) Business Days and its expected duration. For the avoidance of doubt, any monthly fees that would be payable by the Client during the period of a force majeure event shall be suspended for the duration that such force majeure event prevents or delays the Supplier in performing its obligations under the Agreement

• Waiver
  
  
  • A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

• • Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

• Severance
  
  
  • If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

• • If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

• Entire Agreement
  
  
  • The Agreement and any Documentation referred to in it, constitutes the whole Agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

• • Each of the Parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out therein.

• Assignment
  
  
  • The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

• • The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

• No Partnership or Agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

• Solicitation of Employees

Both parties agree that they shall not directly or indirectly solicit the services of any Representative of the other who shall have been (in the case of the Company) actively engaged in the provision of services under this Agreement or the development or implementation of Computer Software or provision of related services hereunder; and (in the case of the Customer) actively engaged in the management or receipt of services under this Agreement or the development or implementation of Computer Software or management or receipt of the provision of related services hereunder in either case until the expiration of twelve months: from the date of termination hereof occasioned by any cause other than the receivership administration or insolvency of the other (when this restriction shall not apply); or from the date that any such individual ceases to be an employee or time for hire contractor, whichever shall be the earlier.

• Third Party Rights

The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

• Notices

• • Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes, if any.

• • A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to

have been received at the time at which it would have been delivered in the normal course of post.

• Governing Law and Jurisdiction

• • The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

• • The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).