1.1 The following definitions and rules of interpretation in this clause apply in this Agreement.
Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
Agreement: means the Order Form together with these terms and conditions.
Authorised Users: those employees, agents and independent contractors of the Customer and its Affiliates, who are authorised by the Customer to use the Services and the Documentation.
Business Day: any day other than a Saturday, Sunday or public or bank holiday in England.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14.5 or clause 14.6.
Customer: the customer identified in the Order Form.
Customer Data: the data inputted or generated by, or on behalf of, the Customer using the Software or otherwise in the course of using the Services.
Data Hosting: the hosting services and access to the hosted database software that SquaredUp provides to the Customer in respect of the Customer Data and the Authorised Users use of the Software.
Data Protection Legislation: the UK Data Protection Legislation and any European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party, and processor, controller, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meanings set out in the Data Protection Legislation.
Data Queries Limit: the limit on data queries in respect of the Customer's chosen Package.
Documentation: the documentation made available to the Customer by SquaredUp online via cloudsupport.squaredup.com or such other web address notified by SquaredUp to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date set out in the Order Form or the date the Customer first signs into the Service, whichever is earlier.
Fees: the subscription fees payable by the Customer to SquaredUp for the number of User Subscriptions as set out in the Order Form or as notified by SquaredUp for any Renewal Period, together with the fees for any additional User Subscriptions payable in accordance with clause 4 and with any overage fees payable in accordance with clause 12.7.
Initial Subscription Term: the initial term of this Agreement as set out in the Order Form.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, 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 intellectual property rights, 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, in any part of the world.
Minimum Product Requirements: as set out in the Documentation.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Objects Indexed Limit: the objects indexed limit in respect of the Customer's chosen Package.
Order Form: means the order form signed by the parties (as attached to these terms and conditions) or, if applicable, the digital order form as presented to the Customer during the online ordering process.
Package: the Services packages as set out at squaredup.io/pricing.
Renewal Period: the period described in clause 18.1.
Services: the subscription services provided by SquaredUp to the Customer under this Agreement including Data Hosting, as more particularly described in the Documentation.
Software: the online software applications provided by SquaredUp as part of the Services.
SquaredUp: Squared Up Ltd, a company incorporated in England and Wales (with company number 07834869) whose registered office is at Building 4 Foundation Park, Roxborough Way, Maidenhead, United Kingdom, SL6 3UD.
Subscription Term: has the meaning given in clause 18.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Policy: SquaredUp's policy for providing support in relation to the Services as made available during the sign-up process and/or as notified to the Customer from time to time.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Usage Allowances: the Data Queries Limit and Objects Indexed Limid purchased by the Customer pursuant to clause 12.1 which entitle Authorised Users to access and use the Services up to the agreed consumption limits.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 12.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Unless the context otherwise requires:
1.3.1 words in the singular shall include the plural and in the plural shall include the singular;
1.3.2 a reference to one gender shall include a reference to the other genders;
1.3.3 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and
1.3.4 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes e-mail.
1.5 In the case of conflict or ambiguity between any provision contained in these terms and conditions and the Order Form, the Order Form shall take precedence.
1.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
2. Acceptance Of These Terms
2.1 By signing the Order Form document and returning by email, or by accepting the Services following the order process, the Customer agrees that these terms and conditions govern the Customer's use of the Software and governs the provision of the Services to the Customer.
2.2 The Agreement shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply even if such other provisions are submitted in a later document or purport to exclude or override the Agreement and neither the course of conduct between parties nor trade practice shall act to modify the Agreement.
3. User Subscriptions and Usage Allowances
3.1 Subject to the Customer paying the Fees due for the User Subscriptions and Usage Allowances and the restrictions set out in the terms and conditions of this Agreement, SquaredUp hereby grants to the Customer and its Affiliates (if applicable) a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's and, if applicable, its Affiliates' internal business operations.
3.2 The parties acknowledge and agree that the Services may be used by the Customer's Affiliates. The Customer shall be responsible for all acts and omissions of its Affiliates as though they were its own.
3.3 In relation to the Authorised Users, the Customer undertakes that:
3.3.1 the maximum number of Authorised Users can not and shall not exceed the number of User Subscriptions as stated in the Order Form or as otherwise increased in accordance with clause 4.1;
3.3.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
3.3.3 each Authorised User shall keep secure access credentials for their use of the Services and Documentation (which may be via an external user authentication service) and that each Authorised User shall keep their password (or access details) confidential;
3.3.4 it shall permit SquaredUp or SquaredUp's designated auditor to audit the Services in order to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at SquaredUp's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
3.3.5 if any of the audits referred to in clause 3.3.4 reveal that access to the Software and/or Services has been provided to any individual who is not an Authorised User, then without prejudice to SquaredUp's other rights, SquaredUp shall be entitled to disable such Authorised User access; and
3.3.6 if any of the audits referred to in clause 3.3.4 reveal that the Customer has underpaid Fees to SquaredUp, then without prejudice to SquaredUp's other rights, the Customer shall pay to SquaredUp an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
3.4 The Customer shall not (and shall procure that its Affiliates and Authorised Users shall not):
3.4.1 access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
22.214.171.124 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
126.96.36.199 facilitates illegal activity;
188.8.131.52 depicts sexually explicit images;
184.108.40.206 promotes unlawful violence;
220.127.116.11 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
18.104.22.168 is otherwise illegal or causes damage or injury to any person or property;
and SquaredUp reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause;
3.4.2 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
22.214.171.124 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
126.96.36.199 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.3 access all or any part of the Services and Documentation in order to build a product or service; or
3.4.4 use the Services and/or Documentation to provide services to third parties, unless otherwise agreed in writing with SquaredUp; or
3.4.5 subject to clause 25.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
3.4.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or
3.4.7 introduce or permit the introduction of, any Virus into SquaredUp's network and information systems.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify SquaredUp.
3.6 SquaredUp may restrict access to the Services and/or Software if the Customer's usage is deemed excessive and is causing performance degradation to the Software and/or Services or otherwise negatively impacting other users and customers of the Software and/or Services.
4. Additional User Subscriptions and Usage Allowances
4.1 Subject to clause 4.2, the Customer may, from time to time during the Subscription Term, purchase additional User Subscriptions and Usage Allowances and SquaredUp shall grant access to the Services and the Documentation to such additional Authorised Users and Usage Allowances in accordance with the provisions of this Agreement. Fees for such additional User Subscriptions and Usage Allowances shall be charged the rate for the Customer's then-current Package in effect at that time, unless the new total number of User Subscriptions or Usage Allowances exceeds the limits for the Customer's current Package, in which case, the Customer shall be upgraded to an appropriate Package and the Fees for the upgraded Package in effect at that time shall be applied. If such additional User Subscriptions or Usage Allowances are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such Fees shall be pro-rated from the date of activation by SquaredUp for the remainder of the Initial Subscription Term or then-current Renewal Period (as applicable).
4.2 If the Customer wishes to purchase additional User Subscriptions or Usage Allowances, the Customer shall notify SquaredUp in writing. SquaredUp shall evaluate such requests and respond to the Customer with details of the Fees. Where the Customer wishes to proceed and pays the relevant additional Fees, SquaredUp shall activate the additional User Subscriptions or Usage Allowances.
5.1 SquaredUp shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
5.2 SquaredUp shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
5.2.1 planned maintenance carried out outside of Normal Business Hours; and
5.2.2 unscheduled emergency maintenance, in which case SquaredUp shall use reasonable endeavours to minimise the impact on the Customer's use of the Services.
6. Support Services
6.1 SquaredUp shall provide the Customer with SquaredUp's standard support services in accordance with the Support Policy for the duration of the Subscription Term.
6.2 SquaredUp may amend the Support Policy in its sole and absolute discretion from time to time.
7. Customer Data and Data Protection
7.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
7.2 In the event of any loss or damage to Customer Data stored in the Service, the Customer's sole and exclusive remedy against SquaredUp shall be for SquaredUp to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by SquaredUp. SquaredUp shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties and subprocessors appointed by SquaredUp to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 7.9).
7.3 The Customer acknowledges and agrees that SquaredUp shall be entitled to use information relating to the Customer's use of the Services and/or Software and related analytics and user telemetry data for the purposes of providing and improving the Services.
7.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
7.5 The parties acknowledge that:
7.5.1 if SquaredUp processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Customer is the controller and SquaredUp is the processor for the purposes of the Data Protection Legislation; and
7.5.2 the personal data may be transferred or stored outside the UK or the country where the Customer and the Authorised Users are located in order to carry out the Services and SquaredUp's other obligations under this Agreement.
7.6 Without prejudice to the generality of clause 7.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to SquaredUp for the duration and purposes of this Agreement so that SquaredUp may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf.
7.7 Without prejudice to the generality of clause 7.4, SquaredUp shall, in relation to any personal data processed in connection with the performance by SquaredUp of its obligations under this Agreement:
7.7.1 process that personal data only on the documented written instructions of the Customer including with regards to transfers of personal data to a third country, unless SquaredUp is required by applicable laws in the UK to process personal data. Where SquaredUp is relying on such applicable laws as the basis for processing personal data, SquaredUp shall promptly notify the Customer of this before performing such processing unless those applicable laws prohibit SquaredUp from so notifying the Customer;
7.7.2 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
7.7.3 not transfer any personal data outside of the United Kingdom unless the following conditions are fulfilled:
188.8.131.52 the Customer or SquaredUp has provided appropriate safeguards in relation to the transfer;
184.108.40.206 the data subject has enforceable rights and effective legal remedies; and
220.127.116.11 SquaredUp complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
7.7.4 assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.7.5 notify the Customer without undue delay on becoming aware of a personal data breach;
7.7.6 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by applicable law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
7.7.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for audits by the Customer or the Customer's designated auditor and, following an audit, inform the Customer if, in the opinion of SquaredUp, an instruction infringes the Data Protection Legislation.
7.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
7.9 The Customer consents to SquaredUp appointing subprocessors of personal data under this Agreement. SquaredUp confirms that it has entered or (as the case may be) will enter with the subprocessor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7 and in either case which SquaredUp confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and SquaredUp, SquaredUp shall remain fully liable for all acts or omissions of any subprocessor appointed by it pursuant to this clause 7.
7.10 Either party may, at any time on not less than 30 days' notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
8. Data Hosting
8.1 In consideration of the continued payment of the relevant Fee, SquaredUp shall provide Data Hosting in accordance with the Support Policy for the duration of the Subscription Term.
9. Third Party Providers
9.1 Where Third Party Providers are used for Data Hosting, the Customer acknowledges that SquaredUp makes no representation or warranty in respect of Third Party Providers' software and/or services and, that these are provided subject to, and with the benefit of, the terms of such Third Party Providers. SquaredUp shall contract with such Third Party Providers for such services and the Customer agrees that SquaredUp will not be liable to the Customer for any loss, damage, claim or liability howsoever arising from or related to Third Party Providers software and/or services beyond that which can be claimed by SquaredUp under the terms of the contract with such Third Party Providers. The Support Policy will not apply to the extent that any failure is caused by any failure or delay in the Third Party Providers' software and/or services.
9.2 The Customer shall indemnify and hold SquaredUp harmless against any loss or damage which it may suffer or incur as a result of any breach of such Third Party Providers' terms and conditions caused by the Customer.
9.3 SquaredUp reserves the right, without liability to the Customer, to disable or suspend the Customer's or any Authorised User's access to any Services under this Agreement including services provided by Third Party Providers for material breach of any of the terms of this Agreement that has, or that SquaredUp can demonstrate is reasonably likely to have, a material adverse effect on the Software and/or Services and their use by other customers and users, in addition to any other rights SquaredUp has in law or equity.
10. SquaredUp's Obligations
10.1 SquaredUp undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
10.2 The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to SquaredUp's instructions, or modification or alteration of the Services by any party other than SquaredUp or SquaredUp's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, SquaredUp will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 10.1.
10.3.1 does not warrant that:
10.3.1.1 the Customer's use of the Services will be uninterrupted or error-free; or
10.3.1.2 that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements.
10.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.4 This Agreement shall not prevent SquaredUp from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
10.5 SquaredUp warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
11. Customer's Obligations
11.1 The Customer shall:
11.1.1 provide SquaredUp with:
18.104.22.168 all necessary co-operation in relation to this Agreement; and
22.214.171.124 all necessary access to such information as may be required by SquaredUp;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
11.1.2 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
11.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, SquaredUp may adjust any agreed timetable or delivery schedule as reasonably necessary;
11.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
11.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for SquaredUp, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
11.1.6 ensure that its network and systems comply with the relevant specifications provided by SquaredUp from time to time; and
11.1.7 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to SquaredUp's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
12. Charges and Payment
12.1 The Customer shall pay the Fees annually in advance to SquaredUp for the User Subscriptions and Usage Allowances in accordance with this clause 12 and the Order Form.
12.2 The Customer shall either pay the Fees as invoiced by SquaredUp or shall pay the Fees by card. On the Effective Date, the Customer shall provide to SquaredUp valid, up-to-date and complete payment card details or approved invoicing and/or purchase order information (as applicable to the payment method) acceptable to SquaredUp and any other relevant valid, up-to-date and complete contact and billing details.
12.3 Where the Customer pays using a payment card, the Customer hereby authorises SquaredUp to bill such payment card:
12.3.1 the Fees payable in respect of the Initial Subscription Term;
12.3.2 on or following the date that the Fees in respect of any additional User Subscriptions and Usage Allowances in accordance with clause 4 and any overages in accordance with clause 12.7 are incurred; and
12.3.3 subject to clause 18.1, on each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period.
12.4 Where the Customer pays on invoice, SquaredUp shall invoice the Customer:
12.4.1 on the Effective Date for the Fees payable in respect of the Initial Subscription Term;
12.4.2 on or following the date that the Fees in respect of any additional User Subscriptions and Usage Allowances in accordance with clause 4 and any overages in accordance with clause 12.7 are incurred; and
12.4.3 subject to clause 18.1, at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
12.5 If SquaredUp has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of SquaredUp:
12.5.1 SquaredUp may, without liability to the Customer, disable the Customer's access to all or part of the Services and SquaredUp shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
12.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Barclays Bank PLC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
12.6 All amounts and fees stated or referred to in this Agreement:
12.6.1 shall be payable in the currency stated in the Order Form;
12.6.2 are, subject to clause 17.3.2, non-cancellable and non-refundable;
12.6.3 are exclusive of value added tax, which shall be added to SquaredUp's invoice(s) at the appropriate rate.
12.7 If, at any time whilst using the Services, the Customer reaches the Objects Indexed Limit and/or Data Queries Limit, the Customer may increase such Objects Indexed Limit and Data Queries Limit by requesting an upgrade. Where the Customer wishes to upgrade to the next Package, SquaredUp shall notify the Customer of the increased Fees. Such Fees shall be based on the rates for the next Package in effect as at the date of such request. If the upgraded Package is requested by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such Fees shall be pro-rated for the remainder of the Initial Subscription Term or then-current Renewal Period (as applicable) and shall take into account any Fees already paid by the Customer for that period. If the Customer agrees to proceed, SquaredUp shall charge the Customer, and the Customer shall pay, the additional Fees for such Package in accordance with this clause 12.
12.8 SquaredUp shall be entitled to increase the Fees at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
13. Intellectual Property Rights
13.1 The Customer acknowledges and agrees that SquaredUp and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights in or to the Software and Services or the Documentation, other than the right to use it in accordance with the terms of this Agreement.
13.2 SquaredUp confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
14.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
14.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
14.1.2 was in the other party's lawful possession before the disclosure;
14.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
14.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
14.2 Subject to clause 14.4, each party shall 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 this Agreement.
14.3 Each party shall 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 this Agreement.
14.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 14.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
14.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute SquaredUp's Confidential Information.
14.6 SquaredUp acknowledges that the Customer Data is the Confidential Information of the Customer.
14.7 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
14.8 The above provisions of this clause 14 shall survive termination of this Agreement, however arising.
15.1 The Customer shall defend, indemnify and hold harmless SquaredUp against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
15.1.1 the Customer is given prompt notice of any such claim;
15.1.2 SquaredUp provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
15.1.3 the Customer is given sole authority to defend or settle the claim.
15.2 Subject to clause 17.3.2, SquaredUp shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this Agreement infringes any Intellectual Property Rights, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
15.2.1 SquaredUp is given prompt notice of any such claim;
15.2.2 the Customer provides reasonable co-operation to SquaredUp in the defence and settlement of such claim, at SquaredUp's expense; and
15.2.3 SquaredUp is given sole authority to defend or settle the claim.
15.3 In the defence or settlement of any claim, SquaredUp may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
15.4 In no event shall SquaredUp, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
15.4.1 a modification of the Services or Documentation by anyone other than SquaredUp; or
15.4.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by SquaredUp; or
15.4.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from SquaredUp or any appropriate authority.
15.5 The foregoing and clause 17.3.2 states the Customer's sole and exclusive rights and remedies, and SquaredUp's (including SquaredUp's employees', agents', sub-contractors' ad subprocessors') entire obligations and liability, for infringement of any UK Intellectual Property Rights.
16. Software Warranty
16.1 SquaredUp warrants that, when properly used in accordance with the Minimum Product Requirements, the Software will conform in all material respects to the Documentation for a period of 90 days from the Effective Date (Warranty Period). If, within the Warranty Period, the Customer notifies SquaredUp in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Documentation, 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 SquaredUp, or it has not been loaded onto configured equipment and in accordance with the Minimum Product Requirements, SquaredUp shall, at SquaredUp's option, do one of the following:
16.1.1 repair the Software;
16.1.2 replace the Software; or
16.1.3 terminate this licence immediately by notice in writing to the Customer and refund any of the 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 SquaredUp in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable SquaredUp to re-create the defect or fault.
16.2 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
17. Limitation of Liability
17.1 Except as expressly and specifically provided in this Agreement:
17.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. SquaredUp shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to SquaredUp by the Customer in connection with the Services, or any actions taken by SquaredUp at the Customer's direction;
17.1.2 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 this Agreement; and
17.1.3 the Services and the Documentation are provided to the Customer on an "as is" basis.
17.2 Nothing in this Agreement excludes the liability of SquaredUp:
17.2.1 for death or personal injury caused by SquaredUp's negligence; or
17.2.2 for fraud or fraudulent misrepresentation.
17.3 Subject to clause 17.1 and clause 17.2:
17.3.1 SquaredUp shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
17.3.2 SquaredUp's total aggregate liability in contract (including in respect of the indemnity at clause 15.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in no circumstances exceed 105% of the Fees paid during the Initial Subscription Term or Renewal Period during which the events giving rise to the claim arose.
18. Term and Termination
18.1 This Agreement shall, unless otherwise terminated in accordance with the terms of this Agreement, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
18.1.1 either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
18.1.2 otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
18.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
18.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
18.2.2 the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
18.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
18.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
18.2.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
18.2.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
18.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
18.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.2.3 to clause 18.2.9 (inclusive); or
18.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
18.3 On termination of this Agreement for any reason:
18.3.1 all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
18.3.2 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;
18.3.3 SquaredUp shall allow the Customer to access the Customer Data in the Service for a period of 90 days following termination, provided that the Customer has, at that time, paid all Fees and met all liabilities outstanding at and resulting from termination (whether or not due at the date of termination). After such period, SquaredUp shall destroy or otherwise dispose of any of the Customer Data stored in the Service in accordance with clause 7.7.6; and
18.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
19. Force Majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, pandemics or epidemics, 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 other party is notified of such an event and its expected duration.
The Customer acknowledges and agrees that SquaredUp may change the Software or Services or this Agreement at any time. SquaredUp shall notify the Customer of any changes. If SquaredUp reasonably believes that the change is material and/or adversely affects the Customer (a "Material Change"), it shall give the Customer at least 30 days' notice before it takes effect and it shall give the Customer the opportunity to accept or reject the Material Change. If SquaredUp cannot publish the Material Change at least 30 days before it takes effect (for example because the change is necessary for the security of the Software and/or Services, because of regulatory change or because one of SquaredUp's suppliers makes changes to its service at short notice), SquaredUp shall publish the Material Change as soon as it reasonably can. In the event of any rejection of a Material Change to this Agreement, either party shall be entitled to terminate the Agreement with immediate effect by written notice to the other party. No other variation of this Agreement shall be effective unless it is in writing and signed by the parties.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22. Rights and Remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
23.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
23.2 If any provision or part-provision of this Agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Entire Agreement
24.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.2 Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
24.4 Nothing in this clause shall limit or exclude any liability for fraud.
25.1 The Customer shall not, without the prior written consent of SquaredUp, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
25.2 SquaredUp 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 this Agreement.
26. No Partnership or Agency
Nothing in this 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).
27. Third Party Rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
28.1 Any notice required to be given under this 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 this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.
28.2 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. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
29. Governing Law
This 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) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).