1. Contract Formation
1.1 The terms on which we will provide Services and/or Deliverables to you are captured in writing on an Order Form.
1.2 By signing an Order Form, you are making an offer to purchase the Services and/or Deliverables from us on these Terms (an “Offer”). Our signing of an Order Form, sending of a confirmation email or supplying Services and/or Deliverables, (which includes any necessary preparatory work), to you in accordance with the Order Form is acceptance of your Offer (“Acceptance”) and creates a binding contract consisting of the Order Form and these Terms (a “Contract”).
1.3 No other terms and conditions, (including, without limitation, your own terms, the pre-printed terms on the back of any PO, or those implied), will apply to a Contract unless we have agreed in writing.
1.4 You and we may in future agree terms on which we will provide additional Services and/or Deliverables to you. We will capture any such terms in an additional order form. These Terms will apply to the contract created pursuant to such additional order form.
2. Definitions and Interpretation
2.1 In these Terms the following definitions apply:
Affiliates means any entity controlled by a party or under a party’s common control, where “control” means: direct or indirect ownership, in an entity of 50% or more of the voting rights conferred by all the issued shares or equity interests in the capital of that entity; or the power to determine directly or indirectly the composition of the majority of the board of directors, similar management body or direct the management of such entity;
Confidential Information means any information, disclosed by a party to the other party, in relation to a Contract, which is designated as confidential, commercially sensitive, or confidential in nature;
Customer Materials means anything you provide to us to enable us to perform our obligations pursuant to a Contract;
Deliverables means the deliverables described in an Order Form;
Insolvency Event means a situation where a party cannot pay its debts as they fall due, has a petition for winding up or an administration order presented against it or passes a resolution for winding up or calls any meeting of its creditors or proposes to make any arrangement with its creditors, has a receiver (administrative or otherwise) or an administrator appointed over all or any part of its business or assets, or goes into liquidation or any event having a similar effect to any of the foregoing applies to a party under the laws of any jurisdiction;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;
Services means the services described in the Order Form.
2.2 Words in the singular include the plural and words in the plural include the singular.
2.3 Clause headings shall not affect the interpretation of these Terms.
2.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.5 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party's other rights and remedies.
2.6 Any phrase introduced by the words including or includes shall be construed as illustrative and shall not limit the generality of the related general words.
3. Term and Termination
3.1 A Contract starts on the Start Date specified in the Order Form (the “Start Date”) and will continue for the term identified in the Order, and then will automatically extend for further 12 month periods on expiry of that term and each subsequent anniversary of the expiry of that term unless a party provides at least 90 days’ written notice to the other that it does not want the Contract to automatically extend. If you wish to serve notice under this clause, you must send an email to email@example.com.
3.2 A party may immediately terminate a Contract by giving the other party written notice if the other party materially or repeatedly breaches the terms of that Contract, and, (where the breach is capable of remedy), fails to remedy such breach within 10 days of receiving written notice requesting remedy of the breach.
3.3 A party may immediately terminate a Contract if the other party is subject to an Insolvency Event.
3.4 Neither party is entitled to terminate, delay, suspend or vary a Contract other than in accordance with these Terms.
4. Our warranties
4.1 We warrant that:
a. we will use reasonable skill and care in providing the Services and Deliverables;
b. the provision of the Services and Deliverables will comply with any applicable law;
c. the Services and Deliverables will conform with any description in the Order Form.
5. Fees and Payment
5.1 Unless otherwise agreed in writing as part of a Contract, we may invoice you for Services and Deliverables in full and in advance.
5.2 You must pay each undisputed invoice:
5.2.1 by the date agreed in the Contract; or
5.2.2 if no such date has been agreed, within 30 days of the date of the invoice.
5.3 You are not entitled to set-off any amount we owe you against any amount you owe us.
5.4 A party may charge the other interest on any late payments. Interest accrues each day from the original due date for payment until the actual date the overdue amount is paid at a rate equal to the lesser of 1.0% per month and maximum rate permitted by applicable law.
5.5 You must reimburse us for any reasonable costs and expenses we incur in recovering any late payments from you. On your written request we will provide evidence of such costs and/or expenses.
5.6 We may suspend the provision of any Services or access to any Deliverables if you owe us anything, from 7 days of the date the debt became overdue.
5.7 On termination of a Contract anything you owe us in relation to the Contract will become due immediately. We may recover from you any costs we incur in collecting overdue monies from you.
5.8 Amounts payable by you in relation to a Contract are exclusive of VAT, sales, use and any similar taxes unless expressly agreed in writing as part of the Contract. If you do not pay such taxes you will be responsible for their payment to relevant authorities. We reserve the right to collect taxes and our reasonable costs of collection from you at any time, except with respect to any taxes based on our net income. In certain jurisdictions, we may be required to collect and remit sales tax in connection with your purchase of Services and Deliverables. Any such taxes will be added to the fees and reflected on your invoice.
5.9 Following the first anniversary of the Start Date, but not more than once in each year of a Contract, we may automatically increase any fees by an amount not exceeding the lower of i) the percentage increase in the UK Retail Price Index (RPI) All Items rate in the preceding year plus 5% and ii) the maximum amount permitted by law.
6. Incorporation of Website Terms
7. Access to the Service
7.1 Your access to and use of the Services is restricted to your employees and individual contractors (i.e. natural persons) (collectively, the “Users”), and permitted for your internal business operations only. You may not designate any other individuals (including employees and individual contractors of your Affiliates) as Users. You agree not to permit any third-party to access the Services except as expressly authorized in a separate Third-Party Access Agreement provided by us. We will issue usernames and personal passwords to authorize acceptable Users to use the Services. Each username and User access is unique. The User must keep the password confidential and must not share or permit access to the Services by any other person. You must immediately notify us of any User who ceases to be your employee or full-time contractor or who is otherwise no longer to be permitted access to the Services for whatever reason and such User’s username and password will be deactivated. You are responsible for ensuring User compliance with this Contract and accept responsibility and liability for the acts and omissions of your Users.
7.2 Your digital services may be subject to a set-up period during which you may not have access, or may have limited access, to the Services after commencement of the Contract. The length of this set-up period may vary depending on the customization of the Services requested and your delivery of any required Customer Materials.
7.3 We make no representations or warranties regarding the reliability, availability, timeliness, suitability, accuracy or completeness of the Services and Deliverables or the results that you may obtain by using them.
7.4 We do not represent or warrant that:
a. the operation or use of the Services or Deliverables will be timely, uninterrupted or error-free;
b. the quality of the Services or Deliverables will meet your requirements; or
c. the Services or Deliverables will function properly in combination with any third party-services, technology, hardware, software, systems or data.
7.5 You acknowledge that the Services and Deliverables may be subject to limitations, delays, loss or corruption of information and other problems inherent in the use of electronic communications facilities.
7.6 Except where expressly provided otherwise, the Services and Deliverables are provided on an "as is" basis. You are solely responsible for ensuring that the Services and Deliverables are appropriate and suitable for your needs and that the assumptions (if any) set out in the Order Form are accurate.
7.7 You agree that neither the Services or Deliverables are advice or recommendations from us and you must not rely on them to make decisions.
7.8 From time to time, we may:
a. temporarily suspend for the purpose of emergency repair, maintenance or improvement, all or part of any Services or Deliverables without notice;
b. temporarily suspend all or part of any Services or Deliverables for scheduled support and maintenance by providing notifications and giving reasonable notice of such suspensions;
c. suspend all or part of any Services or Deliverables without notice if we believe that you have breached a Contract.
7.9 We reserve the right at any time and from time to time to modify, temporarily or permanently, any Services or Deliverables or any component or feature thereof. You agree that we will not be liable to you or to any third party for any such modification of the Services or Deliverables if there is no material detriment to their operation.
7.10 Except where expressly provided otherwise, and without limiting your obligations elsewhere in the Contract, you will not disclose, provide, resell or otherwise make available the Services or Deliverables to any third-party, including (without limitation) any retailer, data provider, or manufacturer, unless expressly authorized by us in a separate written agreement. You further agree that you will not, directly or indirectly:
(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or Deliverables except as permitted by applicable law;
(ii) modify, translate, or create derivative works based on the Services or Deliverables, or incorporate names or likenesses of individuals, locations, structures or other proprietary material referred to in the Services or Deliverables in or on your products, or copy (except for archival purposes), rent, lease, distribute (except as expressly permitted herein), pledge, assign, or otherwise transfer or encumber rights to the Services or Deliverables;
(iii) use or access the Deliverables or Services to build or support, and/or assist a third party in building or supporting, products or services competitive to us, or use (or permit the use of) the Services or Deliverables to generate any statistical information which is sold or otherwise made available to any third party;
(iv) remove any proprietary notices or labels from the Services or Deliverables or use our or any third party’s trade names, trademarks or service marks in or on your products;
(v) use the Services or Deliverables in any manner that could damage, disable, overburden, impair, obstruct or otherwise interfere with our provision of the Services, the Deliverables or our business;
(vi) use the Services to store or transmit computer viruses or other harmful code;
(vii) interfere with or disrupt the integrity or performance of the Services;
(viii) frame or mirror any content forming part of the Services, other than on Customer’s own intranet for Customer’s internal business operations as permitted under the Contract;
(ix) attempt to gain unauthorized access to the Services or its related systems or networks; or
(x) permit direct or indirect access to or use of the Services in any manner that circumvents any restrictions or limitations under the Contract.
7.11 If we consider at any time that you are misusing any Services or Deliverables, we reserve the right to limit, temporarily or permanently as the case may be, your access to the Services or Deliverables.
7.12 We may limit the data and deliverables that are available on the Services based on either or both of (i) the date of first publication or (ii) the amount of data stored on the Services platform. Thereafter, we may archive the data and deliverables in which case the data may be available via an extract for an additional fee.
7.13 If you are acquired by a third party, you agree that we may increase the fees payable for any Services or Deliverables to reflect potential or actual increased usage of Services and Deliverables.
8. Intellectual property
8.1 All Intellectual Property Rights in anything we supply are our property or the property of our third party licensors, and will not transfer to you by Contract.
8.2 We grant you a non-transferable, non-exclusive, non-assignable, revocable, world-wide, royalty free limited license, without the right of sub-license, to access and use the Services and Deliverables for your own internal purposes during the term of the Contract.
8.3 Any rights not expressly granted herein are reserved by us. To the extent that you acquire any right, title, or interest in or to any Glenigan Property (other than with respect to such limited license), you hereby assign and convey all such right, title and interest therein to us.
8.4 We acknowledge that the Customer Materials are your property and that you own all Intellectual Property Rights in and to the same.
8.5 You agree that we may freely use any data (including the Customer Materials) which we learn, acquire or obtain in connection with the performance of a Contract to improve the quality of our services and deliverables.
8.6 We indemnify you against any loss, damages or reasonable costs you incur in connection with claims, demands, suits, or proceedings made or brought against you by a third party claiming that the Deliverables infringe the Intellectual Property Rights of a third party (a "Claim"); provided, however, that we will not have any liability to indemnify you for a Claim to the extent the alleged infringement arises from:
a. changes to the Deliverables made at your specific written direction;
b. your failure to use new or corrected versions of the Deliverables provided by us where you are notified that use of such new or corrected version is necessary to avoid infringement;
c. the modification of the Deliverables by you or any third-party on your behalf other than as expressly contemplated by the Contract without our written consent; or,
d. combination of the Deliverables with systems, materials or software other than as contemplated by the Contract.
8.7 You must:
a. immediately give us written notice of a Claim (provided that your failure to so notify will not relieve us of our indemnification obligations hereunder except, and only to the extent, that we are prejudiced thereby);
b. give us full control of the defence and settlement of the Claim (provided that (i) you may participate in the defence at your own expense and (ii) we may not settle or defend any Claim unless we unconditionally release you from all liability in relation to that Claim); and
c. provide us with all reasonable assistance in relation to the Claim at our expense.
8.8 If we believe that a Claim could prevent you from receiving or using all or any part of the relevant Services or Deliverables, we may:
a. procure the right for you to make continued use of the relevant Services and Deliverables;
b. replace or modify the Deliverables so that they become non-infringing, as the case may be; or
c. terminate the relevant Deliverables immediately on written notice to you, and refund to you any pre-payment in relation to such cancelled Deliverables.
8.9 You indemnify us against any loss, damage or reasonable costs we incur in connection with claims made or brought against us by a third party alleging that any Customer Materials infringe the Intellectual Property Rights of the third party. We must:
a. promptly give you written notice of the claim (provided, that our failure to so notify will not relieve you of your indemnification obligations hereunder except, and only to the extent, that you are prejudiced thereby);
b. give you full control of the defence and settlement of the claim (provided that (a) we may participate in the defence at our own expense and (b) you may not settle or defend the claim unless you unconditionally release us from all liability in relation to the claim); and
c. provide you with all reasonable assistance in relation to the claim at your expense.
9. Delivery and your obligation to enable our performance
9.1 You must provide us with such:
a. access to premises and facilities; and
b. information, instructions and materials;
as we require from time to time to enable us to perform a Contract.
9.2 You agree that to the extent that you cause failure or delay to our performance of any obligation under a Contract, we will not be in breach, nor liable to you for any related loss.
10.1 Each party must hold sufficient insurance to cover its potential liabilities under the Contract. This includes (without limitation) any insurance required by applicable law or specified on the Order Form.
11. Compliance with applicable laws including those relating to data privacy
11.1 Both parties must comply with all applicable laws in connection with the provision and use of the Services and Deliverables, including but not limited to those related to data privacy and personal data.
12. Anti-Bribery and Sanctions
12.1 Each party warrants that it will:
a. comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;
b. put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet its statutory responsibilities in this regard; and
c. promptly notify the other party of any request or demand for any undue financial or other advantage of any kind received by or on behalf of you in connection with a Contract.
12.2 Breach by either party of these Anti-Bribery and Sanctions provisions will be a material breach of a Contract.
13. Consequences of Termination
13.1 Termination of a Contract by either party will not affect the operation of any other Contract between the parties.
13.2 Termination or expiration of a Contract, or any part thereof, will not affect the continuance in force of any provision of the Contract or the relevant constituent part which is expressly or by implication intended to survive termination.
14.1 Nothing in a Contract will operate to exclude or limit a party’s liability for death or personal bodily injury caused by its or its employees or subcontractors’ negligence, or for any fraudulent misrepresentation by any of the foregoing or for any other liability which cannot be excluded or restricted by law or for any breach by you of the usage restrictions in respect of the Services or Deliverables.
14.2 Subject to the foregoing:
a. neither party will be liable to the other arising out of or in connection with a Contract for any of the following types of losses, damages, or expenses of any kind arising out of or in connection with that Contract;
(iv) lost profits*;
(v) lost revenue*;
(vi) lost sales*;
(vii) anticipated savings; and
(viii) losses, damages, or expenses arising from loss of data;
*Excludes the fees for Services agreed upon in an Order Form
b. except for any liability under any indemnity in clause 6 in relation to intellectual property, each party’s total aggregate liability to the other arising out of or in connection with a Contract will be limited to two times the amount paid and payable pursuant to the Contract; and
c. neither party will have any liability to the other party for any failure or delay in performing an obligation under a Contract because of any event beyond that party’s or its subcontractors’ reasonable control.
14.3 You are not entitled to rely on the exclusions of liability in this clause to relieve you from liability to pay monies payable to us.
14.4 Each party acknowledges that in entering into a Contract it has not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in the Contract.
15. Confidentiality and Data Protection
15.1 Each party will ensure that it:
a. keeps the Confidential Information confidential and does not disclose it to any third party; and
b. only uses Confidential Information in relation to the Contract;
unless otherwise permitted by these Terms.
15.2 The commitments in clause 15.1 above do not apply to any Confidential Information which was:
a. publicly available before the Start Date or subsequently becomes publicly available through no failure to comply with the Contract;
b. already known to a party or is subsequently legitimately disclosed to a party by a third party without legal restriction; or
c. developed independently by a party without use of or reliance on the Confidential Information received under the Contract.
15.3 A party may disclose the Confidential Information:
a. to its Affiliates, agents, contractors and suppliers, provided that: (i) those third parties have entered into non-disclosure agreements no less onerous than as set out in these Terms; and (ii) the party disclosing Confidential Information to those third parties ensures and is liable for their compliance with these Terms; and
b. where and to the extent required by applicable law, provided prompt written notice of that requirement is given to the original discloser (where such notice is lawful).
15.4 All Confidential Information disclosed by a party or its Affiliates remains the property of the discloser. Each party must return or, if clearly instructed by the other party, destroy that received Confidential Information remaining in its or its Affiliates' possession or control, within thirty (30) days of written request from the other party. Confidential Information may be retained to the limited extent required as part of securely-held confidential records to be used only to determine and/or comply with legal obligations (including secure electronic backups of these records, which may only be used to replace the permitted records if lost or corrupted).
15.5 Both parties will comply with all the obligations imposed on an independent Data Controllers under the Data Protection Act 2018, including prompt notification of any potential or actual breach of these obligations. Both parties will always use appropriate technical and organisational measures to protect any of the other party’s Personal Data that is held as part of the Services against loss or unauthorised use or access. Capitalised terms used in this clause 15.5 have the meanings given in the Data Protection Act 2018.
16.1 The terms and provisions of this Contract are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
16.2 The documents comprising the Contract (together with any documents referred to therein or required to be entered into thereunder) contain the entire agreement and understanding between the parties relating to the subject matter of the Contract and supersede all prior agreements, understandings or arrangements (both written and oral) relating to the subject matter of the Contract.
16.3 In the event of conflict or inconsistency between the Order Form, the Module Terms and these Terms, and between any of the foregoing and a document referred to in the Contract, documents will take precedence in the order listed above.
16.4 You represent and warrant that the person executing this Contract has the authority to bind you to the terms hereof. You will require any employee, contractor or agent who accesses the Services or Deliverables to adhere to the relevant terms of the Contract.
16.5 Notices required under Contract will be sent by email to the relevant party’s address on the Order Form or as otherwise agreed in writing for such purpose. Notice by email is deemed effective three hours from transmission.
16.6 The parties acknowledge and agree that our communication may be electronic, and that any communications sent electronically comply with any legal or contractual requirement that such communication be made in writing.
16.7 We may assign, sub-license or otherwise transfer to any Affiliate the benefit of any of our rights under the Contract if we give you reasonable prior written notice. We may sub-contract our performance of any obligation under a Contract to any of our Affiliates without notice. This will not affect our performance obligations, nor liability to you in relation to the Contract. We will be responsible for any violation of our obligations hereunder by any such sub-contractor. Otherwise, neither party may assign, sub-license, subcontract or otherwise transfer to any third party any of its rights or obligations under the Contract without the other party’s prior written consent.
16.8 If any provision of the Contract is held to be invalid or unenforceable, that portion will be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Contract will remain valid and enforceable.
16.9 The Contract will not create, nor will it be construed as creating, any partnership or agency relationship between the parties.
16.10 Each party will comply with all applicable laws and government regulations which apply to a Contract.
16.11 Nothing in a Contract will require either party to do or omit to do anything which would contravene any applicable laws or government regulations.
17. Law and Jurisdiction; Waiver of Jury Trial
17.1 The Contract will be governed by and construed with the laws of England and Wales and the courts of England and Wales will be the exclusive venue for all disputes between the parties arising out of or in connection with this Contract and the parties hereby submit to the personal jurisdiction of, and waive any objections to venue in, such courts.