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1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions:
Additional Licensor Terms the additional third party licencing terms and conditions set out in Urban Intelligence’s Third Party Licence Catalogue.
API Fees the subscription fees payable by the Customer to UI for the API Services, as set out in the Order Form.
API Report the report, technical literature and all other related materials (in human-readable or machine-readable forms) provided by UI to the Customer as part of the API Services.
API Services the API services provided by UI to the Customer under the Contract, as more specifically described in the Order Form.
API Term the Initial API Term together with any subsequent Renewal API Term.
Back-Up Policy UI’s archiving procedures for Customer Data available at this link or such other website address as may be notified to the Customer from time to time, as such document may be amended by UI in its sole discretion from time to time.
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date has the meaning given to it in clause 2.3.
Conditions these terms and conditions as amended from time to time in accordance with clause 21.1.
Confidential Information information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how or methodologies, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing and, for clarity, including (in the case of UI’s information) information relating to the Services, the Software or any of its constituent parts, the source code relating to the Software or any such parts.
Consultancy Fees the fees payable by the Customer to UI for the Consultancy Services, as set out in the Engagement Letter.
Consultancy Services the consultancy services provided by UI to the Customer under the Contract, as more specifically described in the Engagement Letter.
Contract the contract between UI and the Customer for the supply of Services in accordance with these Conditions.
Customer the person or firm (identified in the Order) who purchases Services from UI.
Customer Data the data provided to UI by the Customer, Users, or a third party on the Customer's behalf for the purpose of the Customer’s use of the Services or facilitating the Customer's use of the Services.
Data Protection Legislation the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Engagement Letter the engagement letter setting out the Customer's order for Consultancy Services.
Initial API Term the initial term of the Contract for API Services, as set out in the Order Form.
Initial SAAS Term the initial term of the Contract for SAAS Services, as set out in the Order Form.
Normal Business Hours 9.00 am to 5.00 pm local UK time, each Business Day.
Order Form the Order Form (either paper or online) setting out the Customer's order for SAAS Services and/or API Services.
Order the Customer's order for Services as set out in the Order Form or the Engagement Letter.
Overage Fees the overage fees payable by the Customer to UI in respect of Site Reports accessed by the Customer in excess of SAAS Credits purchased by the Customer, as set out in the Order Form.
Privacy and Security Policy UI’s policy relating to the privacy and security of the Customer Data available at this link or such other website as may be notified to the Customer from time to time, as such document may be amended from time to time by UI in its sole discretion.
Renewal API Term the renewal term of the Contract for API Services, as set out in the Order Form.
Renewal SAAS Term the renewal term of the Contract for SAAS Services, as set out in the Order Form.
SAAS Credits the credits purchased by the Customer pursuant to the Contract which entitle the Customer to access and use the SAAS Services in accordance with the Contract.
SAAS Fees the subscription fees payable by the Customer to UI for the SAAS Credits, as set out in the Order Form.
SAAS Services the software as a service provided by UI to the Customer under the Contract via this link or any other website notified to the Customer by UI from time to time.
SAAS Term the Initial SAAS Term together with any subsequent Renewal SAAS Term.
Services the services supplied by UI to the Customer under the Contract whether the services are (i) the SAAS Services; (ii) the API Services (iii) the Consultancy Services; or (iv) any or all of those services together.
Site a selected individual HM Land Registry cadastral parcel or a custom site boundary (drawn by a User on UI’s online map).
Site Report has the meaning given to it in clause 4.2(b).
Software the online software applications provided by UI as part of the SAAS Services.
Sub-Processors UI’s third-party processors of personal data under the Contract, as set out at this link.
Support Services Policy UI’s policy for providing support in relation to the SAAS Services as made available at this link or such other website address as may be notified to the Customer from time to time.
UI Urban Intelligence Ltd incorporated and registered in England and Wales with company number 09294616 whose registered office is at 17-19 Clare St, Bristol BS1 1XA.
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.
Users those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the SAAS Services.
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.
Vulnerability a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause headings shall not affect the interpretation of these Conditions.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail. 1.10 References to clauses are to the clauses of these Conditions.
2. Basis of contract
2.1 These are the Conditions on which UI supply Services to the Customer, whether the Services are:
(a) the SAAS Services;
(b) the API Services;
(c) the Consultancy Services; or
(d) any or all of those services together.
In some areas of the Conditions different provisions will apply depending on the Services being supplied by UI.
2.2 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when UI issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.4 Any descriptive matter or advertising issued by UI are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SAAS services
3.1 UI shall, during the SAAS Term, provide the SAAS Services to the Customer on and subject to the terms of the Contract.
3.2 UI shall use commercially reasonable endeavours to make the SAAS Services available 24 hours a day, seven days a week, except for: (a) planned maintenance carried out during the maintenance window of 11.00 pm to 5.00 am UK time; and (b) unscheduled maintenance performed outside Normal Business Hours, provided that UI has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
3.3 UI will, as part of the SAAS Services, provide the Customer with UI’s standard customer support services during Normal Business Hours in accordance with UI’s Support Services Policy in effect at the time that the SAAS Services are provided. UI may amend the Support Services Policy in its sole and absolute discretion from time to time.
3.4 Subject to the Customer:
(a) purchasing the SAAS Credits in accordance with the terms of the Contract;
(b) complying with the restrictions set out in this clause 3; and
(c) complying with the terms of the Contract, UI hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Users to use the SAAS Services during the SAAS Term solely for the Customer's internal business operations.
3.5 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the SAAS Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property, and UI 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.
3.6 The Customer shall not:
(a) except as permitted by law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the SAAS Services in order to build a product or service which competes with the SAAS Services; or
(c) subject to clause 26.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the SAAS Services available to any third party except the Users; or
(d) attempt to obtain, or assist third parties in obtaining, access to the SAAS Services, other than as provided under this clause 3; or
(e) introduce or permit the introduction of, any Virus or Vulnerability into UI’s network and information systems.
3.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the SAAS Services and, in the event of any such unauthorised access or use, promptly notify UI.
4. SAAS fees
4.1 The Customer shall pay the SAAS Fees to UI for the SAAS Credits in accordance with this clause 4 and the Order Form.
4.2 Each SAAS Credit shall entitle the Customer to:
(a) use the SAAS Services in accordance with the terms of the Contract; and
(b) access detailed information and reports relating to a single Site (“Site Report”). 4.3 Site Reports accessed by the Customer in excess of SAAS Credits purchased, shall entitle UI to charge the Customer the Overage Fees.
4.4 The Customer shall on the Commencement Date provide to UI valid, up-to-date and complete credit card details or approved purchase order information acceptable to UI and any other relevant valid, up-to-date and complete contact and billing details.
4.5 If, pursuant to clause 4.4, the Customer provides UI with:
(a) its credit card details, the Customer hereby authorises UI to bill such credit card:
(i) monthly for the SAAS Fees payable in respect of the Initial SAAS Term; and
(ii) subject to clause 18.1, monthly for the SAAS Fees payable in respect of the Renewal SAAS Term;
(b) its approved purchase order information to UI, UI shall invoice the Customer:
(i) monthly for the SAAS Fees payable in respect of the Initial SAAS Term; and
(ii) subject to clause 18.1, monthly for the SAAS Fees payable in respect of the Renewal SAAS Term, and the Customer shall pay each invoice within 14 days after the date of such invoice.
4.6 If UI has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of UI:
(a) UI may, without liability to the Customer, disable the Customer's password, account and access to all or part of the SAAS Services and UI shall be under no obligation to provide any or all of the SAAS Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% 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. 4.7 UI shall be entitled to increase the SAAS Fees and the Overage Fees at the start of each Renewal SAAS Term upon 60 days' prior notice to the Customer and the Contract shall be deemed to have been amended accordingly.
5. SAAS term
5.1 The Contract for SAAS Services shall, unless otherwise terminated as provided in clause 18, commence on the Commencement Date and shall continue for the Initial SAAS Term and, thereafter, the Contract shall be automatically renewed for successive periods of the Renewal SAAS Term, unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial SAAS Term or any Renewal SAAS Term, in which case the Contract shall terminate upon the expiry of the applicable Initial SAAS Term or Renewal SAAS Term; or
(b) otherwise terminated in accordance with the provisions of the Contract.
6. API services
6.1 Subject to the Customer:
(a) purchasing the API Services in accordance with the terms of the Contract;
(b) complying with the restrictions set out in this clause 6; and
(c) complying with the terms of the Contract, UI hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the API Report during the API Term solely for the Customer's internal business operations.
6.2 The Customer shall not:
(a) except as permitted by law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the API Report in any form or media or by any means; or
(b) subject to clause 26.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the API Report available to any third party.
6.3 The Customer shall use all reasonable endeavours to prevent unauthorised access to, or use of, the API Report and, in the event of any such unauthorised access or use, promptly notify UI.
7. API fees
7.1 The Customer shall pay the API Fees to UI for the API Services in accordance with this clause 7 and the Order Form.
7.2 The Customer shall on the Commencement Date provide to UI valid, up-to-date and complete credit card details or approved purchase order information acceptable to UI and any other relevant valid, up-to-date and complete contact and billing details.
7.3 If, pursuant to clause 7.2, the Customer provides UI with:
(a) its credit card details, the Customer hereby authorises UI to bill such credit card:
(i) monthly for the API Fees payable in respect of the Initial API Term; and
(ii) subject to clause 18.1, monthly for the API Fees payable in respect of the Renewal API Term;
(b) its approved purchase order information to UI, UI shall invoice the Customer:
(i) monthly for the API Fees payable in respect of the Initial API Term; and
(ii) subject to clause 18.1, monthly for the API Fees payable in respect of the Renewal API Term, and the Customer shall pay each invoice within 14 days after the date of such invoice.
7.4 If UI has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of UI:
(a) UI shall be under no obligation to provide any or all of the API Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% 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.
7.5 UI shall be entitled to increase the API Fees at the start of each Renewal API Term upon 60 days' prior notice to the Customer and the Contract shall be deemed to have been amended accordingly.
8. API term
8.1 The Contract for API Services shall, unless otherwise terminated as provided in clause 18, commence on the Commencement Date and shall continue for the Initial API Term and, thereafter, the Contract shall be automatically renewed for successive periods of the Renewal API Term, unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial API Term or any Renewal API Term, in which case the Contract shall terminate upon the expiry of the applicable Initial API Term or Renewal API Term; or
(b) otherwise terminated in accordance with the provisions of the Contract.
9. Consultancy services
9.1 Subject to the Customer:
(a) purchasing the Consultancy Services in accordance with the terms of the Contract; and
(b) complying with the terms of the Contract, UI shall provide the Consultancy Services to the Customer from the Commencement Date unless and until the Contract is terminated by either party giving to the other not less than 2 weeks' prior written notice or as otherwise provided in the Contract.
10. Consultancy fees
10.1 The Customer shall pay the Consultancy Fees to UI for the Consultancy Services in accordance with this clause 10 and the Engagement Letter.
10.2 The Customer shall on the Commencement Date provide to UI valid, up-to-date and complete approved purchase order information acceptable to UI and any other relevant valid, up-to-date and complete contact and billing details.
10.3 UI shall invoice the Customer monthly for the Consultancy Fees payable in respect of each month and the Customer shall pay each invoice within 14 days after the date of such invoice.
10.4 If UI has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of UI:
(a) UI shall be under no obligation to provide any or all of the Consultancy Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% 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.
11. Payments, currency and VAT
11.1 All amounts and fees stated or referred to in the Contract:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to UI’s invoice(s) at the appropriate rate.
12. UI's obligations
12.1 UI undertakes that the Services will be performed with reasonable skill and care. The undertaking under this clause 12.1 shall not apply to the extent of any non conformance which is caused by:
(a) the Customer’s breach of the terms of the Contract;
(b) use of the Services contrary to UI’s instructions; or
(c) modification or alteration of the Services by any party other than UI or UI's duly authorised contractors or agents.
12.2 UI:
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error free;
(ii) that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Vulnerabilities,
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
12.3 The Contract shall not prevent UI 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 the Contract.
13. Customer's obligations
13.1 The Customer shall:
(a) provide UI with:
(i) all necessary co-operation in relation to the Contract; and
(ii) all necessary access to such information as may be required by UI, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
(c) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner;
(d) ensure that the Users use the SAAS Services in accordance with the terms of the Contract and shall be responsible for any User's breach of the Contract;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for UI, its contractors and agents to perform their obligations under the Contract;
(f) ensure that its network and systems comply with the relevant specifications provided by UI from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to UI’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.
14. Proprietary rights
14.1 The Customer acknowledges and agrees that:
(a) UI and/or its licensors own all intellectual property rights in the Services;
(b) the licences granted under the Contract (and the scope of use of the Services) shall be subject to the Additional Licensor Terms; and
(c) except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
14.2 UI makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any Services that are subject to the Additional Licensor Terms. UI recommends that the Customer refers to and reviews the Additional Licensor Terms prior to using the Services.
14.3 UI may treat the Customer's breach of any Additional Licensor Terms as a material breach of the Contract.
15. Customer data
15.1 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.
15.2 UI shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against UI shall be for UI to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by UI in accordance with the archiving procedure described in its Back-Up Policy. UI shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by UI to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 15.9).
15.3 UI shall, in providing the Services, comply with its Privacy and Security Policy.
15.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. For the purposes of this clause 15, “controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures” shall have the meanings given to them in the Data Protection Legislation.
15.5 The parties acknowledge that:
(a) if UI processes any personal data on the Customer's behalf when performing its obligations under the Contract, the Customer is the controller and UI is the processor for the purposes of the Data Protection Legislation;
(b) the Order sets out the scope, nature and purpose of processing by UI, the duration of the processing and the types of personal data and categories of data subject; and
(c) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and UI’s other obligations under the Contract.
15.6 Without prejudice to the generality of clause 15.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to UI for the duration and purposes of the Contract so that UI may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer's behalf.
15.7 Without prejudice to the generality of clause 15.4, UI shall, in relation to any personal data processed in connection with the performance by UI of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless UI is required by the laws of any member of the European Union or by the laws of the European Union applicable to UI and/or Domestic UK Law (where “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (“Applicable Laws”). Where UI is relying on Applicable Laws as the basis for processing personal data, UI shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit UI from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or UI has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) UI complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) UI complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data,
(c) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract 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
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and immediately inform the Customer if, in the opinion of UI, an instruction infringes the Data Protection Legislation.
15.8 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
15.9 The Customer consents to UI appointing the Sub-Processors as UI’s third-party processors of personal data under the Contract. UI confirms that it has entered or (as the case may be) will enter into a written agreement with the Sub-Processors and in either case which UI confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and UI, UI shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 15.
15.10 Either party may, at any time on not less than 30 days' notice, revise this clause 15 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 the Contract).
16. Confidentiality
16.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
16.2 Subject to clause 16.4, 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 the Contract.
16.3 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 the Contract.
16.4 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 16.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
16.5 Subject to clause 16.6, neither party shall make, or permit any person to make, any public announcement concerning the Contract 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.
16.6 Notwithstanding any other term of the Contract, UI shall be entitled to use the Customer’s name, and identify the Customer as a recipient of the Services, in UI’s advertising, promotional and marketing materials.
16.7 The above provisions of this clause 16 shall survive termination of the Contract, however arising.
17. Liability
17.1 Nothing in the Contract excludes the liability of UI for:
(a) death or personal injury caused by the negligence of UI, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
17.2 Except as expressly and specifically provided in the Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
(c) the Services are provided to the Customer on an "as is" basis.
17.3 Subject to clause 17.1 and clause 17.2:
(a) UI shall not in any circumstances have any liability 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, which fall within any of the following categories:
(i) special damage even if UI was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data, provided that this clause 17.3(a) shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of clause 17.3(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 17.3(a);
(b) the total liability of UI, whether in contract, tort (including negligence) or otherwise and whether in connection with the Contract or any collateral contract, shall in no circumstances exceed a sum equal to the total amounts paid by the Customer under the Contract during the 12 months immediately preceding the date on which the claim arose; and
(c) the Customer agrees that, in entering into the Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Contract or (if it did rely on any representations, whether written or oral, not expressly set out in the Contract) that it shall have no remedy in respect of such representations and (in either case) UI shall have no liability in any circumstances otherwise than in accordance with the express terms of the Contract.
17.4 The Customer shall defend, indemnify and hold harmless UI 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:
(a) use of the Services; and/or
(b) breach of any Additional Licensor Terms howsoever arising.
18. Termination
18.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.1(d) to clause 18.1(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
18.2 On termination of the Contract for any reason:
(a) all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services;
(b) 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;
(c) UI may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 15.7(c), unless UI receives, no later than 10 days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. UI shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by UI in returning or disposing of Customer Data; and
(d) 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.
19. Force majeure
19.1 UI shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of UI or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
20. Conflict
20.1 If there is an inconsistency between any of the provisions in the main body of the Contract and the Order, the provisions in the main body of the Contract shall prevail.
21. Variation
21.1 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. Waiver
22.1 No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
23. Rights and remedies
23.1 Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
24. Severance
24.1 If any provision or part-provision of the Contract 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 the Contract.
24.2 If any provision or part-provision of the Contract is deemed deleted under clause
24.1 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.
25. Entire agreement
25.1 The Contract 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.
25.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
25.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
26. Assignment
26.1 The Customer shall not, without the prior written consent of UI, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
26.2 UI may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
27. No partnership or agency
27.1 Nothing in the Contract 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).
28. Third party rights
28.1 The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
29. Notices
29.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in the Order.
29.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume. 29.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
30. Governing law
30.1 The Contract 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.
31. Jurisdiction
31.1 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).
