TERMS OF USE
1. INTERPRETATION.
1.1 The following definitions and rules of interpretation in this clause apply in this Licence. Supplier: BTC Solutions Ltd and/or its designated affiliates. Customer: the purchaser specified overleaf. Data Protection
Legislation: (a) all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy
and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and (b) any other European
Union legislation relating to personal data and all other legislation and regulatory requirements, in each case in force from time to time which apply to a party relating to the use of personal data (including, without
limitation, the privacy of electronic communications. Intellectual Property Rights: all patents, utility models, rights to inventions, copyrights, design rights, trade marks, service marks, trade secrets, know-how, trade
names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of
information (including know-how and trade secrets) and any other rights in the nature of intellectual property rights (whether registered or unregistered) including all applications for (and rights to apply for and be
granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, anywhere in the world.
Licence Fee: the fee for the Software specified overleaf. Maintenance Release: release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not
constitute a New Version. Minimum Term: the initial term of this Licence being the minimum term as specified overleaf. New Version: any new version of the Software which from time to time is publicly marketed
and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as
constituting a new product. Order Form: the order form executed by both parties. Software: as defined overleaf, but (i) excluding any New Versions, and (ii) in executable form only, excluding any Source Code
Materials. Source Code Materials: the source code of the Software and all related technical information and documentation. Start Date: the date that the Order Form has been executed by both parties. Term: the
Minimum Term and any automatic renewal(s) under clause 2.1.
1.2 The headings in this Licence do not affect its interpretation. The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the
same class as the preceding words where a wider construction is possible. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Licence. Unless the
context otherwise requires: (a) references to the Supplier and the Customer include their permitted successors and assigns; (b) references to statutory provisions include those statutory provisions as amended or reenacted;
and © references to any gender include all genders. In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in the Schedules or appendices,
the provision in the body of this Licence shall take precedence. Words in the singular include the plural and in the plural include the singular.
2. LICENCE AND TERM.
2.1 This Licence shall commence on the Start Date and, subject to earlier termination in accordance with its terms, shall continue until the expiry of the Minimum Term and thereafter for successive periods of 12 months
(each a “Renewal Term”), unless and until terminated by either party giving the other at least sixty (60) days’ notice in writing, such notice to expire no earlier than on the expiry of the Minimum Term or the then
current Renewal Term, subject to compliance with the terms and conditions of this Licence.
2.2 In consideration of the Licence Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a personal, non-exclusive, non-transferrable licence to use the Software in accordance with the scope of
use described in clause 2.3 for the Term.
2.3 In relation to scope of use: (a) use of the Software shall be restricted to use via remote access to the Supplier’s server for the normal business purposes of the Customer (which shall not include allowing the use of the
Software by, or for the benefit of, any person other than an employee of the Customer); (b) the Customer may not use the Software other than as specified in clauses 2.1 or 2.2(a) without the prior written consent of
the Supplier and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier; © the Customer may not load the Software on to a network server for the purposes
of distribution to one or more other computers on that network or to effect such distribution; (d) except as expressly stated in this clause 2, the Customer has no right (and shall not permit any third party) to copy,
adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether
by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the
Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the
Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
2.4 In relation to assignment or sub-licensing, the Customer has no right to sub-license or to assign the benefit or burden of this Licence in whole or in part, or to allow the Software to become the subject of any charge,
lien or encumbrance without the prior written consent of the Supplier.
2.5 The Customer shall permit the Supplier to inspect and have access to any premises, and to the computer equipment located there, at or on which the Software is being kept or used, and any records kept pursuant to
this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall
take place at reasonable times.
2.6 The Supplier reserves the right to suspend or terminate provision of any Software in a particular jurisdiction if Supplier determines, in its reasonable discretion, that the Software cannot be provided in accordance
with applicable laws or regulations. The Supplier reserves the right to make changes in rules of operation, security measures, accessibility, procedures, types of terminal equipment, types of system equipment,
operating system requirements, programming languages and any other matters relating to the Software and its use, without notice to the Customer.
3. FEES.
3.1 The Customer shall pay the Licence Fee to the Supplier monthly, in advance on or before the first day of each month and all other amounts which may fall due under this Licence will be billed monthly in arrears and
payable within thirty (30) days of the Supplier’s invoice unless otherwise agreed by the parties without any set off or other deduction. All sums payable under this Licence are exclusive of VAT, for which the Customer
shall be responsible.
3.2 If the Customer fails to pay any amount payable by it under this Licence, without prejudice to its other rights and remedies the Supplier shall be entitled (but not obliged) to charge the Customer interest on the overdue
amount under the Late Payment of Commercial Debts (Interest) Act 1998, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment. Such
interest shall accrue on a daily basis and be compounded quarterly.
3.3 The Supplier shall have the right to increase the Licence Fee in respect of any Renewal Term by giving no less than ninety (90) days written notice to the Customer, such notice to expire no earlier than the end of the
Minimum Term or the then current Renewal Term (as applicable).
1. 3.4. The fees for any Specified Services (as hereinafter defined) are set forth overleaf. The Customer shall pay any such fees, and any additional sums which are agreed between the Supplier and the Customer for
the provision of the Specified Service, or which, in the Supplier’s commercially reasonable discretion, are required as a result of the Customer’s instructions or lack of instructions, the inaccuracy of any documents,
materials, data, or other information provided by the Customer, or any other cause attributable to the Customer. The Supplier shall be entitled to vary the fees of the Specified Services from time to time by giving
not less than three months’ written notice to the Customer.
3.4 The fees for any Equipment (as hereinafter defined) are set forth overleaf. The price for the Equipment is based on the rate prevailing at the date specified overleaf and the Supplier may increase the price to cover
any increases charged by the manufacturer of the Equipment. The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment that has not
been delivered to reflect any increase in the cost to the Supplier which is due to any change in quantities or specifications for the Equipment which is requested by the Customer. Subject to any special terms agreed
in writing between the Customer and the Supplier, the Supplier may invoice the Customer for the price of the Equipment on or at any time after delivery of the Equipment, unless the Customer wrongfully fails to take
delivery of the Equipment in which case the Supplier shall be entitled to invoice the Customer for the price at any time after the Customers failure to take delivery. The terms of payment for Equipment shall be within
7 days of the date of the Supplier’s invoice, whether or not delivery has taken place or title in the Equipment has passed to the Customer. Time for payment of the Equipment price shall be of the essence of the Licence.
4. MAINTENANCE RELEASES AND MODIFICATIONS.
4.1 The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers.
4.2 The Supplier shall reasonably endeavour to inform the Customer of any New Versions and shall offer to sell such New Versions to the Customer on substantially the same terms on which they are generally made
available to the Supplier’s customers by the Supplier.
4.3 The Supplier reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Software to the extent the Software is modified or discontinued for substantially all of its customers.
5. SUPPLIER’S WARRANTIES; LIMITS OF LIABILITY; INDEMNIFICATION.
5.1 The Supplier warrants that the Software will conform in all material respects to the Specification for a period of 90 days from the Start Date (Warranty Period). If, within the Warranty Period, the Customer notifies
the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or
anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Licence, for a purpose or in a context other than the purpose or context for which it was designed
or in combination with any other software not provided by the Supplier, the Supplier shall, at the Supplier’s option, do one of the following: (a) repair the Software; or (b) replace the Software; or © terminate this
Licence immediately by notice in writing to the Customer and refund any of the Licence Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software
to the date of termination) on return of the Software and all copies thereof, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including
sufficient information to enable the Supplier to re-create the defect or fault.
5.2 EXCEPT AS SET FORTH IN CLAUSE 5.1, THE SOFTWARE IS PROVIDED “AS IS” AND THE SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED OR INCORPORATED INTO THIS LICENCE OR
ANY COLLATERAL CONTRACT, WHETHER BY STATUTE , COMMON LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, SYSTEM
INTEGRATION, INFORMATION CONTENT, DATA ACCURACY, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, THE USE OF REASONABLE CARE AND SKIL OR OTHERWISE.
5.3 THE SUPPLIER DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
5.4 The Customer accepts responsibility for the selection of the Software to achieve its intended results.
5.5 The Customer shall load and use the Software at its own risk.
5.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise,
are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
5.7 Except as expressly stated in clause 5.9, the Supplier’s liability, whether under this Licence or any collateral contract, for loss of or damage to the Customer’s tangible property caused by the negligence or more culpable
conduct of the Supplier, its officers, employees, contractors or agents, shall not exceed the amount paid by the Customer in the 12 month period prior to the date on which the Customer makes a claim. Save as
provided in this clause 5.7 or as otherwise prohibit by law, IN NO EVENT SHALL THE SUPPLIER BE LIABLE FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY THE CUSTOMER (OR ANY PERSON CLAIMING
UNDER OR THROUGH THE CUSTOMER), WHETHER THE SAME ARE SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE OR CONSEQUENTIAL, AND WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE HOWSOEVER, AND HOWEVER CAUSED WHICH FALL WITHIN ANY OF THE FOLLOWING CATEGORIES:
(A) SPECIAL DAMAGE, EVEN IF THE SUPPLIER WAS AWARE OF THE CIRCUMSTANCES IN WHICH SUCH SPECIAL DAMAGE COULD ARISE,
(B) INCIDENTAL DAMAGE,
© INDIRECT DAMAGE,
(D) CONSEQUENTIAL DAMAGE,
(E) LOSS OF BUSINESS PROFITS,
(F) LOSS OF USE,
(G) TRADING LOSSES,
(H) LOSS OF ANTICIPATED SAVINGS,
(I) BUSINESS INTERRUPTION,
(J) LOSS OF BUSINESS OPPORTUNITY,
(K) LOSS OR CORRUPTION OF DATA, OR
(L) LOSS OF GOODWILL.
5.8 The Customer acknowledges that no representations were made prior to entering into this Licence. The Customer agrees that, in entering into this Licence, it did not rely on any representations (whether written or
oral) of any kind or of any person other that those expressly set out in this Licence. The Customer shall have no remedy in respect of any representation (whether written or oral) made to it on which it relied in entering
into this Licence and the Supplier shall have no liability otherwise than pursuant to the express terms of this Licence.
5.9 The exclusions in clause 5.7 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for death or personal injury caused by the negligence of the Supplier, its officers, employees,
contractors or agents, for fraud or fraudulent misrepresentation, or for any other liability which may not be excluded by law.
5.10 The term “however caused” when used or referred to in this clause 5 shall cover all causes and actions giving rise to liability of the Supplier arising out of or in connection with this Licence, the Software, technical
support or administration maintenance services: (i) whether arising by reason of any misrepresentation (whether made prior to and/or in this Licence), negligence, other tort, breach of statutory duty, repudiation,
renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Software, technical support or
administration maintenance services; and (iv) whether deliberate (but not in bad faith) or otherwise, however fundamental the result.
5.11 The Supplier will not be liable for a breach of a warranty contained in this Licence unless the Customer notifies the Supplier in writing of such failure within 14 days of the Customer first becoming aware of the failure.
5.12 The Customer agrees to defend, indemnify, and hold the Supplier harmless from and against any and all claims, demands, causes of actions, losses and damages, including without limitation, reasonable attorney’s
fees, which it may suffer or incur as a result of Customer’s use of the Software.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Subject to clause 6.2, the Customer acknowledges that all Intellectual Property Rights in and arising from the Software and related services, including, without limitation, all corrections, enhancements, modifications
and derivative works thereof, belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence. No title or
ownership in and to Software or any part thereof, is transferred to Customer under this Licence. Customer shall not alter, distort or remove any proprietary notices or legends from the Software and shall include such
notices on any authorised copies of the Software.
6.2 The Customer’s data held by the Supplier on its server will at all times remain the Customer’s data. The Customer warrants that any documents, materials, data, or other information provided to Supplier and the
subsequent use of or reliance on such information by the Supplier for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party, and the Customer shall indemnify
the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
7. TERMINATION.
7.1 Either party may terminate this Licence at any time on written notice to the other if the other party (i) is unable to pay its debts as they become due; (ii) becomes insolvent; (iii) is subject to an order or a resolution for
its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or (iv) has an administrative or other receiver, manager, trustee, liquidator,
administrator or similar officer appointed over all or any substantial part of its assets; or (v) enters into or proposes any composition or arrangement with its creditors generally, or (vi) is subject to any analogous event
or proceeding in any applicable jurisdiction.
7.2 The Supplier may terminate this Licence immediately if the Customer is in material or persistent breach of any terms of this Licence (including payment of the Licence Fee). The Customer may terminate this Licence
by written notice if the Supplier commits a material breach of this Licence and fails to remedy that breach within a period of thirty (30) days after being notified[in writing to do so.
7.3 Termination by either party in accordance with the rights contained in this clause 7 or by notice in accordance with clause 2.1 shall be without prejudice to any other rights or remedies of that party accrued prior to
termination.
7.4 On termination for any reason: (a) all rights granted to the Customer under this Licence shall cease; (b) the Customer shall cease all activities authorised by this Licence including all use of the Software; © the Customer
shall immediately pay to the Supplier any sums due to the Supplier under this Licence, including any amount of the Licence Fee unpaid as at the date of termination (including any interest due); and (d) the Customer
shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certifying in writing to the Supplier that
it has done so.
7.5 Following termination of this Licence, the Supplier will return to the Customer or permanently delete all information currently held on the Supplier’s server. In the case of return, such data will be provided within 30
days of the effective date of termination and in such format as the Supplier shall determine.
7.6 Any provision of this Licence which expressly or by implication is intended to come into or continue in force on or after termination of this Licence shall remain in full force and effect
8. TECHNICAL SUPPORT. During the Term, the Supplier will make technical support available to the Customer via a telephone help desk, which will be manned during normal office hours (typically 0900 to 1700 Monday
to Friday on normal business day in the United Kingdom). The Supplier reserves the right to modify the support service from time to time in its sole discretion without notice. Further technical support which would
fall outside the remit of the telephone help desk can be made available to the Customer at the Supplier’s then current price lists.
9. ADMINISTRATION MAINTENANCE. The Supplier shall, if necessary, provide administration maintenance to the Customer either directly or indirectly (from such other party as the Supplier shall nominate). The scope
of any such project will be dealt with by separate agreement and the Customer will pay charges in line with the Supplier’s then-current daily charge out rate for support.
10. INSTALLATION AND TRAINING SERVICES.
10.1 If requested in Section 3 (Training Programmes) overleaf, the Supplier shall provide the training programme for the Customer in accordance with Section 3 (training Programmes) and this clause (“Specified Service(s)”).
Any changes or additions to the Specified Service must be agreed in writing by the Supplier and Customer.
10.2 The Customer shall at its own expense supply the Supplier with all necessary documents, materials, data, or other information relating to the Specified Service, within sufficient time to enable the Supplier to provide
the Specified Service in accordance with this Licence. The Customer shall ensure the accuracy of all documents, materials, data, or other information provided by the Customer relating to the Specified Service.
10.3 The Customer shall at its own expense retain duplicate copies of all documents, materials, data, or other information provided to Supplier and insure against its accidental loss or damage. The Supplier shall have no
liability for any such loss or damage, however caused. All output documents, materials, data, or other information provided by the Supplier to the Customer relating to the Specified Service shall be at the sole risk of
the Customer from the time of delivery to or to the order of the Customer.
10.4 Further details about the Specified Service, and advice or recommendations about its provision or utilisation may be made available on written request.
10.5 The Supplier may correct: any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Specified Service without any liability to
the Customer.
10.6 The Supplier may at any time without notifying the Customer make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not
materially affect the nature or quality of the Specified Service.
10.7 The Supplier will perform the Specified Service using reasonable care and skill and, as far as reasonably possible, at the intervals and within the times referred to overleaf. Where the Supplier supplies in connection
with the provision of the Specified Service any goods supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where
possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying
2. the goods to the Supplier.
11. SALE OF HARDWARE.
11.1 If requested in Section 4 (Hardware) overleaf, the Supplier shall supply the specified equipment set out overleaf to be purchased by the Customer from the Supplier (including any part or parts of it) (“Equipment”).
11.2 A binding contract for the sale of the Equipment shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written order acknowledgement to the Customer, or the
Supplier delivers the Equipment to the Customer (whichever occurs earlier).
11.3 The Supplier may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of clause 3 of this Licence. No cancellation or termination
by either party of any instalment shall entitle the Customer to repudiate or cancel any other instalment.
11.4 The quantity and description of the Equipment shall be as set out in the Supplier’s acknowledgement of order or (if there is no acknowledgment of order) quotation. Any typographical, clerical or other error or omission
in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
11.5 As the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.
11.6 The Supplier’s employees, contractors and agents are not authorised to make any contractually binding representations concerning the Equipment. The Customer acknowledges that it does not rely on, and waives
any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of the Supplier. However, nothing in these conditions limits the Supplier’s liability for fraudulent
misrepresentation.
11.7 Any advice or recommendation given by the Supplier or its employees, contractors or agents to the Customer or its employees, contractors or agents about the storage, application or use of the Equipment which is
not confirmed in writing by an authorised officer of the Supplier is followed or acted on entirely at the Customer’s own risk.
11.8 The Supplier shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in the Supplier’s acknowledgement of order, but any such date is approximate only. If no dates are so specified,
delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and the Supplier is not liable for any delay in delivery, however caused. The
Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer. Delivery shall be made during normal business hours.
11.9 The Customer shall be responsible (at the Customer’s cost) for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment.
11.10 The Customer shall be deemed to have accepted the Equipment when the Customer has had 7 days to inspect it after delivery and has not given written notice of any defect to the Supplier. The Supplier shall have the
option of testing or inspecting the Equipment at its current location or moving it to the Supplier’s premises (or those its agent or sub-contractor) at the cost of the Supplier. If the Customer’s claim is subsequently
found by the Supplier to be outside the scope or duration of the warranty in this clause 11, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
11.11 The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Supplier’s acknowledgement of order. The Supplier shall off-load the Equipment at the Customer’s
risk. Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when the Supplier has received in full in cleared funds all sums due to it in respect of the
Equipment. Until ownership of the Equipment has passed to the Customer, the Customer shall: (a) hold the Equipment on a fiduciary basis as the Supplier’s bailee; (b) store the Equipment (at no cost to the Supplier)
in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as the Supplier’s property; © not destroy, deface or obscure any
identifying mark or packaging on or relating to the Equipment; and (d) keep the Equipment insured on the Supplier’s behalf for its full price against all risks to the reasonable satisfaction of the Supplier, and hold the
proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
11.12 The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make
any payment to the Supplier on the due date. The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order
to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the Customer.
11.13 Subject to any warranty limitations imposed by the manufacturer of the Equipment, the Supplier warrants to the Customer that at the time of delivery the Equipment is free from defects of workmanship and materials.
The Supplier undertakes, at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within 12 months of delivery. The
Supplier shall not be liable for a breach of the warranty contained in this clause 11 unless: (a) the Customer gives written notice of the defect to the Supplier within 7 days of the time when the Customer discovers or
ought to have discovered the defect; and (b) after receiving the notice, the Supplier is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do so by the Supplier) returns such
Equipment to the Supplier’s place of business at the Supplier’s cost for the examination to take place there.
11.14 The Supplier shall not be liable for a breach of the warranty in the foregoing clause if: (a) the Customer makes any use of Equipment in respect of which it has given written notice under clause 11.13(a); or (b) the
defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade
practice; or © the Customer alters or repairs the relevant Equipment without the written consent of the Supplier.
11.15 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the 12-month period.
11.16 The Supplier shall not be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.
11.17 Any liability of the Supplier for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for
such Equipment. If the Supplier’s performance of its obligations with respect to the delivery of the Equipment is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure
Event), the Customer shall be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have
against the Customer in this respect.
12. PRIVACY AND CONSENT.
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data
Protection Legislation.
12.2 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under the Licence (the scope, nature, purpose and duration of which and the types of personal data will be set out
in clause 12.5), the parties acknowledge that for the purpose of the Data Protection Legislation, the Customer is the Data Controller and the Supplier is a Data Processor. In any such case and without prejudice to the
generality of clause 12.1:
(a) the Customer shall ensure that the Customer 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 Licence on the Customer’s behalf;
(b) the Customer shall ensure that any relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data
Protection Legislation and all other applicable data protection legislation;
© the Supplier shall process the personal data only on the written instructions reasonably given by the Customer from time to time unless the Supplier is required by the laws
applicable to the Supplier to process the personal data. Where the Supplier is relying on such applicable laws as the basis for processing, the Supplier shall promptly notify the
Customer of this before performing the processing required by such applicable laws unless these laws prohibit the Supplier from notifying the Customer;
(d) 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 appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be
protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising
and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can
be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(e) the Supplier shall ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(f) the Supplier shall assist the Customer, at the Customer’s cost, in respect to any request from a data subject and in ensuring compliance with its obligations under the Data
Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) the Supplier shall not transfer any personal data outside the countries comprising the European Economic Area (EEA) and the United Kingdom (whether or not it is part of the
EEA), except that Supplier may so transfer such personal data to the country or countries where the Customer is located in order to provide access to the Software or as might
otherwise be required to carry out the Supplier’s obligations under this Licence including to any Affiliate of the Supplier), but in respect of any such transfer shall ensure that the
following conditions are fulfilled: (i) either the Customer or the Supplier has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights
and effective legal remedies; and (iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal
data that is transferred;
(h) the Supplier shall include in any contract with such sub-contractors and service providers who process personal data on the Customer’s behalf, provisions which are equivalent
to those in this clause 12;
(i) the Supplier shall notify the Customer without undue delay (and in any event within 36 hours) of becoming aware of a personal data breach;
(j) the Supplier shall at the written direction of the Customer, delete or return the personal data and copies thereof to the Customer on termination of this Licence unless required
by applicable law to store the personal data; and
(k) Supplier shall maintain complete and accurate records and information to demonstrate its compliance with this clause 12. Supplier will respond to reasonable and appropriate
inquires raised by the Customer regarding the processing of personal data on the Customer’s behalf. In the event the Customer reasonably considers that the responses provided
by Supplier necessitate further analysis, Supplier shall either: (i) provide to the Customer a written certification that the Supplier carries out audits to verify the adequacy of its
security measures, including obtaining security information which is made available by cloud hosting providers used by the Supplier in providing the Services; or (ii) make the
facilities Supplier uses for the processing of personal data on the Customer’s behalf available for an audit by the Customer or other qualified independent third party assessor
reasonably acceptable to Supplier, bound by confidentiality obligations satisfactory to Supplier and engaged by the Customer (at Customer’s expense). The Customer will provide
a copy of the audit report to the Supplier’s Data Protection Manager and the audit report shall be treated as Supplier’s confidential information. Audits shall be conducted no
more than once per year during the term of the Licence, only during regular business hours, and shall be subject to at least 45 days’ advanced written notice to Supplier and the
submission, review and approval by Supplier’s Data Protection Manager of a detailed written audit plan prepared by Customer (such approval not to be unreasonably withheld).
Any audit must be conducted in full compliance with Supplier’s policies and procedures applicable to visitors generally and under the supervision of Supplier’s Data Protection
Manager. The audits shall not be permitted to disrupt Supplier’s daily operations or otherwise compromise the security or confidentiality of the Supplier’s or any third-party’s
data. Supplier may charge Customer a reasonable fee for such audit. Where the Supplier carries out an audit as referenced in (i) above, such audit shall: (a) be performed at least
annually; (b) be performed by independent third party security professionals at the Supplier’s selection and expense; and © result in the generation of an audit report (“Report”),
which will be the Supplier’s confidential information. At the Customer’s written request, and provided that the parties have an applicable confidentiality agreement in place, the
Supplier will provide the Customer with a copy of the Report so that the Customer can reasonably verify the Supplier’s compliance with its obligations under this Licence; and
(l) immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
12.3 The Customer consents to the Supplier’s use of sub-processors engaged in the processing of the Customer’s personal data by way of general authorisation in respect of all such sub-processors as at the Start Date. The
Supplier shall make available to the Customer a list of its current sub-processors and the Customer may sign up to receive notifications of changes by the Supplier to its sub-processors to give the Customer an
opportunity to object to such change. The Customer must notify the Supplier in the event that it does not agree to a proposed change within 10 business days of receiving a notification from the Supplier, specifying
the grounds for such objection (acting reasonably). If the Supplier receives such an objection, then the Supplier may (at its option):
(a) cancel its plans to change the affected sub-processor;
(b) offer an alternative which is acceptable to the Customer;
© take corrective steps to remove the objection identified by the Customer to the Customer’s reasonable satisfaction, after which the Supplier may proceed with appointing the relevant sub-processor; or
(d) without liability for either party, the Supplier may terminate this Licence by providing written notice with immediate effect (for the avoidance of doubt, this option may be exercised by the Supplier at any time, whether
or not it has attempted one or more of the above options).
12.4 The Customer acknowledges that the Supplier is reliant on the Customer for instructions as to the extent to which the Supplier is entitled to use and process any personal data. Consequently, the Supplier will not be
liable for any claim brought by a data subject arising from any action or omission by the Supplier to the extent that such action or omission resulted from the Customer’s instructions, subject to clause 12.2©.
12.5 The scope, nature, purpose of processing and the types of personal data and categories of data subjects are as follows:
(a) Scope, nature and purpose: provision of the Software;
(b) Duration: during the Term;
© Types of Personal Data: name, title, address, business telephone number, purchase information, business email address, business-related information, dealer code, employer, VIN number, make and model of car, and
registration number; and
(d) Categories of Data Subjects: users of the Software, namely vehicle technicians and customers of the Customer.
12.6 Customer is directed to the Privacy Policy in place on Supplier’s websites for full information about data protection, which gives all contact details and information with respect to data protection, use of data, data
processing and other related matters.
13. FORCE MAJEURE. No party shall be liable to the other for any delay or non-performance of its obligations under this Licence arising from any cause beyond its control including, without limitation, any of the following:
act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 13 shall excuse the Customer from any payment obligations under this Licence.
14. CONFIDENTIALITY AND PUBLICITY.
14.1 Each party shall, during the Term and thereafter, keep confidential all, and shall not use for its own purposes (other than as set out in this Licence) nor without the prior written consent of the other disclose to any
third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates
to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this
Licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
14.2 The terms of this Licence are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
14.3 The provisions of this clause 14 shall remain in full force and effect notwithstanding termination of this Licence for any reason.
15. WAIVER. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to
be a waiver of any other right or of any later breach.
16. SEVERABILITY. If any provision of this Licence is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
17. AMENDMENTS; ASSIGNMENT. Any amendment, waiver or variation of this Licence shall not be binding on the parties unless set out in writing, expressed to amend this Licence and signed by or on behalf of each of
the parties. Customer may not assign its rights or delegate its duties hereunder without first securing written permission from Supplier, which permission may be withheld at the sole discretion of Supplier. Supplier
may freely assign its rights hereunder without securing Customer’s permission to do so.
18. THIRD PARTY RIGHTS. No term of this Licence is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Licence.
19. NOTICES. Any notice required to be given pursuant to this Licence shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Licence.
Notices may be sent by first-class mail or email. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 3 days after posting and correctly directed emails shall be deemed to have
been received upon transmission.
20. ENTIRE AGREEMENT.
20.1 This Licence and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject
matter of this Licence.
20.2 Each party warrants to the other party that, in entering into this Licence and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty of any person (whether a party
to this Licence or not) other than as expressly set out in this Licence or those documents.
20.3 Each party agrees and undertakes to the other party that the only rights and remedies available to it arising out of or in connection with this Licence or its subject matter shall be solely for breach of contract, in
accordance with the provisions of this Licence.
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
21. GOVERNING LAW AND JURISDICTION. This Licence shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts