- 1. DEFINITIONS & INTERPRETATION
- 2. THE PLATFORM
- 3. LICENSE
- 4. CUSTOMER OBLIGATIONS
- 5. SCOPE OF SERVICES
- 6. SERVICES
- 7. CHANGE CONTROL PROCEDURE
- 8. FEES
- 9. APPLICABLE LAW AND LEGALITY
- 10. CONFIDENTIALITY
- 11. PLATFORM CONTENT
- 12. DATA PROTECTION AND SECURITY
- 13. INTELLECTUAL PROPERTY RIGHTS
- 14. WARRANTIES
- 15. LIMITATIONS OF LIABILITY
- 16. AUDIT AND REVIEW
- 17. RELEVANT RECORDS RETENTION
- 18. GOVERNANCE, REVIEW MEETINGS AND MANAGEMENT INFORMATION
- 19. BUSINESS CONTINUITY AND DISASTER RECOVERY
- 20. SUBCONTRACTING
- 21. TERM AND TERMINATION
- 22. PREPARATION FOR AND CONSEQUENCES OF TERMINATION
- 23. NON-SOLICIT
- 24. TUPE
- 25. DISPUTE RESOLUTION
- 26. PUBLICITY
- 27. ASSIGNMENT
- 28. FORCE MAJEURE
- 29. GENERAL
1. Definitions & Interpretation
1.1 In this Agreement, unless the context otherwise requires, capitalised terms and expressions have the following meanings:
Acceptance means, in relation to the Platform, the process set out in clause 2.1, and “Accepts” and “Accepted” shall be construed accordingly;
Acceptance Test Plan means the Customer acceptance test plan for the Platform as set out in Schedule 11 (Acceptance Test Plan) hereto;
Affiliate any entity that directly or indirectly Controls, is controlled by, or is under common Control with another entity;
Agreement means the terms and conditions of this agreement, including any Schedules hereto and all Change Requests entered into pursuant hereto, as amended from time to time;
Applicable Law means all laws, statutes, regulations, principles, guidelines, orders, directives and rules which are relevant in relation to the provision or receipt of the Services or this Agreement generally;
Authorised End Users means any person working for or acting on behalf of the Customer or any registered user of the Platform.
Business Continuity and Disaster Recovery Plan means the business continuity and disaster recovery plan set out in Schedule 7 (Disaster Recovery and Business Continuity);
Business Day means any day which is not a Saturday, Sunday, bank or statutory holiday in England;
Change means any change to the scope of the Services or to the manner of performance or provision of the Platform by or on behalf of the Supplier;
Change of Control means a Change of Control;
Change Request has the meaning given in Schedule 5 (Change Control);
Commencement Date means the date of this Agreement;
Confidential Information means this Agreement and any other agreement or information ancillary thereto and any information, however, conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and/or suppliers of either Party or its Affiliates, together with all information derived from any such information and any other information clearly designated by a Party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably to be considered to be confidential;
Contract Year means a period of 12 consecutive months commencing on the Commencement Date or an anniversary of the date hereof;
Control means, in relation to a business entity, the direct or indirect ownership of more than 50% of the voting capital or similar right of ownership of that business entity or the legal power to direct or cause the direction of the general management and policies of that business entity, whether through the ownership of voting capital, by contract or otherwise, and ‘Controls’ and ‘Controlled’ shall be interpreted accordingly;
Customer Data means all data, including Personal Data provided by the Customer, its suppliers and/or clients to the Supplier and/or stored on the Platform in connection with this Agreement or the provision of the Services as well as any such data generated in connection with this Agreement;
Customer Materials means all content supplied by the Customer to the Supplier and/or generated by it using the Platform from time to time;
Customer Personal Data means Customer Data that is Personal Data;
Customer Policies means such policies as may be provided by the Customer from time to time;
Data Controller has the meaning set out in the DPA;
Data Processor has the meaning set out in the DPA;
Data Subject has the meaning set out in the DPA;
Deliverable means any material (such as but not limited to the Platform, Source Code or Software) provided by the Supplier to the Customer under this Agreement;
Development Environment This is the server hosted site on the subdomain “dev.” which is used for testing and development purposes.
Dispute means any dispute between the Parties arising out of or in connection with this Agreement;
Dispute Resolution Process means the process set out in clause 24;
DPA means all laws and regulations including laws and regulations of the European Union (EU), the European Economic Area (EEA), their member states and the United Kingdom and any amendments, replacements or renewals thereof, applicable to the processing of Personal Data, including where applicable the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020, the EU GDPR, the UK GDPR and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
eTicket Customer Support Solution means the customer support solution set out in Schedule 10 (eTicket customer Support Solution);
Exit Phase means the period: (a) commencing on the day after the date on which a Party has given notice to the other Party that it intends to terminate this Agreement; and (b) ending on the date six (6) months after the date of the termination of the Agreement;
FCA means the Financial Conduct Authority;
Fees means the fees payable in respect of the Services which fees are detailed (together with their payment terms) in Schedule 8 (Charges and Payment);
Financial Sanctions means any legislation and/or regulation relating to current and future financial sanctions regimes, asset freezing or other economic sanctions, including legislation and asset freezing lists issued by the United Nations, European Union and/or United Kingdom as well as any regulatory requirements;
Force Majeure Event means any act of war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, national emergencies, fire, flood, earthquake, or acts of God;;
Good Industry Practice means, at any time during the Term, the exercise of reasonable skill, care, prudence, efficiency and foresight which would at that time be expected from a reasonably and suitably skilled, trained and experienced person providing services similar to the Services;
Hosting Service means the service detailed in Schedule 2 (Hosting Services), relating to the hosting of the Platform;
Hosting Service Providers means the sub-contracted suppliers detailed in Schedule 2 (Hosting Services), relating to the hosting of the Platform;
IPR means any and all rights to and/or in patents, copyrights, trademarks, service marks, design rights, utility models, moral rights, topography rights, Source Code, rights in computer software and in websites, databases rights and rights in other protectable lists of information, rights in confidential information, trade secrets, inventions, know-how, trade and business names, domain names, getups, logos and trade dress (including all extensions, revivals and renewals, where relevant), in each case whether registered or unregistered, whatsoever and wherever subsisting, any and all applications in relation thereto, the goodwill attaching to any of them and any rights or forms of protection of a similar nature and having equivalent or similar effect;
Licensed Jurisdiction means the United Kingdom;
Liabilities means any action, award, claim, cost (including legal costs), damage, loss, demand, expense, liability, interest, fine, penalty, taxation or proceeding;
Live Environment This is the server hosted site on the subdomain “www.” which is used for public access and trading.
Losses means all losses, liabilities, damages, costs, claims, charges, actions, procedures, demands and expenses (including legal expenses and other professional costs and expenses);
Maintenance Service means the services detailed in Schedule 3 (Support and Maintenance), relating to the maintenance of the Platform;
Management Information means the management information which the Supplier must provide to the Customer at their request and in such format as approved by the Customer, including any report relevant for Customer’s security function and key functions such as reports prepared by Supplier’s internal audit function;
Member means any party who has registered on the Platform (including anyone lending, borrowing or otherwise using the Platform);
Member Materials means all content generated by a Member using the Platform from time to time;
Nonconformity means a failure of the Deliverable to meet any of the applicable Acceptance criteria which the Customer has reasonably relied upon;
On-Going Services means the services detailed in Schedule 4 (Ongoing Services), relating to the on-going development of the Platform;
Option Agreement means the agreement detailed in Schedule 9 (Option Agreement);
Option Notice means the notice given in relation to the exercise of the Customer’s option to purchase the Platform as set out in the Option Agreement;
Party means either the Customer or the Supplier as applicable and “Parties” shall be interpreted accordingly;
Personal Data has the meaning set out in the DPA;
Platform means the electronic platform hosted by the Supplier pursuant to this Agreement and as more specifically detailed in the Specification;;
PRA means the Prudential Regulation Authority;
Project Manager means each Party’s representative nominated in accordance with clause 17 as may be changed from time to time subject to giving the other Party notice;
Regulated Activity has the meaning set out in the Financial Services and Markets Act 2000;
Regulations means all regulations, principles, guidelines, orders and/or rules which are relevant in relation to this Agreement or the provision or receipt of the Services (including those of any relevant Regulator and those made pursuant to the Financial Services and Markets Act 2000 and/or the Financial Services Act 2012);
Regulator(s) means the FCA and/or PRA as the context allows (or any successor regulator where applicable);
Relevant Record means all material data, information, text, drawings, records, documents and other materials which are embodied in any medium (including any electronic, optical, magnetic or tangible media) generated by the Supplier or any Subcontractor or otherwise within the possession or control of the Supplier or any Subcontractor and which relate directly to:
(a) the Services;
(b) the Service Levels and Service Level Credits;
(c) the Fees;
(d) Changes; and
(e) Supplier’s compliance with Clauses 9, 11, 16, 17 and 18,
but excluding any of Supplier’s or a Subcontractor’s documentation that is subject to legal professional privilege;
Services means any one or all the services contemplated by clause 4;
Service Credit means a percentage of the Fees to be credited to the Customer in respect of a Service Failure in recognition of the reduced level of service received by the Customer in respect of the relevant Service, as detailed in Schedule 6 (Service Levels);
Service Delivery Documentation means the description of the processes and methods used by the Supplier for the delivery of the Services together with any forms, manuals or other documents used in the delivery of the Services. The Service Delivery Documentation simply describes how the Services are delivered and not what the Services are and any amendments to the Service Delivery Documentation will not result in amendments to the Services;
Service Failure means any failure of any or all of the Service Levels as detailed in Schedule 6 (Service Levels);
Service Level(s) means the expected levels of performance of the Services according to the Platform and Hosting Service Levels, Support Service Levels, Maintenance Service Levels, Development Service Levels, Deployment Service Levels, Design Service levels and the eTicket Support Service Levels, as detailed in Schedule 6 (Service Levels);
Service Recipients means the Customer and any Affiliates of the Customer;
Software means computer software (in object code and Source Code format);
Software Virus means any software virus, clock, timer, counter or other limiting or disabling code, design or routine that is harmful to any computer systems (including, by causing all or any part of any of the systems to be erased, inoperable or otherwise incapable of being used in the full manner for which it was designed) or which enables access to any of the systems or theft of Data or Confidential Information or which otherwise impairs the operation of any of the systems;
Subcontractor means any third party appointed by the Supplier to provide any of the Services on its behalf, in accordance with clause 19.1 and “SubContract” shall be interpreted accordingly;
Source Code means the source code of all the modules and components comprised in the relevant software in human-readable form and in such form that it can be compiled or interpreted into object code together with all tools technical information and documentation (including all specifications, input and output formats, algorithms and file structures) that are necessary for the use, reproduction, modification, enhancement and compilation of such software or have been used for such purposes;
Specification means, in relation to the Platform, the technical, functional, physical, design, environmental, operational, performance specifications detailed in Schedule 1 (Specification);
Staging Environment This is the server hosted site on the subdomain “staging.” which is used for testing, simulation and final review purposes, prior to being merged with the live environment.
Supplier Materials means all materials and associated IPR used in the supply of the Services (including the Supplier Systems) other than the Customer Materials and Member Materials;
Supplier Personnel means any and all persons engaged from time to time in the provisions of the Services whether employees, workers, consultants or agents of the Supplier or any Subcontractor;
Supplier’s Systems means all of the Supplier’s systems (including computer systems and communication networks and systems), software, processes and methods used by the Supplier to provide the Services;
Support Services means the services detailed in Schedule 3 (Support and Maintenance), relating to the support of the Platform;
Term means a period of 5 calendar years;
Termination Assistance means the services to be provided by the Supplier, as more fully described at clause 21.2;
TUPE Regulations means the Transfer of Undertakings (Protection of Employment) Regulations 2006 and any legislation amending, modifying, extending, varying, superseding, replacing, substituting or consolidating it from time to time or any law in the relevant jurisdiction which, as a consequence of the termination, in whole or in part, of this Agreement or the Supplier’s provision of the Services, transfers a person’s contract of employment to the Customer or any Successor Operator or provides a person with a right to become employed by the Customer or any Successor Operator or which transfers liability to the Customer or any Successor Operator for any act or omission (including dismissal) in respect of an employee;
Unauthorised Change means any Change which did not receive approval from the Customer through the Change Control Procedure; and
User means the same as Member;
VAT means value added tax chargeable in accordance with the Value Added Tax Act 1994 and/or any other similar additional tax.
1.2 In this Agreement:
1.2.1 headings are for convenience only and shall not affect the interpretation of any provision thereof;
1.2.2 any reference to a clause or Schedule, is a reference to a clause or Schedule of this Agreement (unless the context otherwise requires) and references in any Schedule to sections relate to sections in that Schedule;
1.2.3 any reference to a person includes any individual, firm, company or other legal entity;
1.2.4 any obligation in this Agreement on a person or Party not to do something, includes an obligation not to agree, permit or acquiesce to that thing being done;
1.2.5 references to any statute, statutory provision, statutory instrument, enactment, order, regulation, principle and rules or other similar instrument (each a “Provision”) includes a reference to that Provision together with all rules and regulations made under or to implement it, as from time to time amended, replaced, consolidated or re-enacted (with or without modification);
1.2.6 words denoting the singular include the plural and vice versa;
1.2.7 words denoting any gender and or the neuter include all genders;
1.2.8 the words “include”, “includes”, “including”, “included”, “in particular” and “inter alia” shall be construed without limitation and the words “other” and “otherwise” are illustrative and shall not limit the generality of any preceding words; and
1.2.9 any reference to a Party shall include its successors or assigns (immediate or otherwise) in accordance with the terms of this Agreement.
1.3 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and a provision contained in the Schedules, the former shall take precedence.
2. Platform Acceptance
2.1 Following the Supplier’s completion of the setup of the Platform in accordance with the Specification, the Supplier shall run tests on the work completed in accordance with this clause 2.
2.2 The tests shall cover functionality and technical criteria (i.e. functional and non-functional testing) and overall test compliance of the Platform in accordance with the Specification and the Acceptance Test Plan (the “Acceptance Tests”).
2.3 The Supplier shall notify the Customer when the Acceptance Tests have been passed and provide the results of the Acceptance Tests to the Customer in writing, or as otherwise agreed, in order for the Customer to review the Acceptance Test results.
2.4 Following the delivery of the Platform to the Customer, by the Supplier, the Supplier shall ascertain, that the Platform:
2.4.1 is in accordance with the Specifications; and
2.4.2 satisfies the Acceptance Tests or other requirements agreed between the Parties, within 20 Business Days of delivery, or such other period as may be agreed in writing with the Supplier (the “Acceptance Period”).
2.5 Following the Acceptance Period, the Customer shall notify the Supplier in writing that the Customer either:
2.5.1 Accepts the Platform; or
2.5.2 if the Platform fails to meet the Acceptance Test Plan, Specifications or other requirements as agreed between the Parties, rejects the Platform; or
2.5.3 if the Platform fails to meet the Acceptance Tests, Specifications or other requirements as agreed between the parties, the Customer is prepared to temporarily accept the Platform and will Accept the Platform provided that certain identified issues are rectified within 10 Business Days or such longer period as the Supplier and the Customer may agree.
2.6 Acceptance by the Customer shall not be unreasonably withheld.
2.7 If Customer rejects the Platform in accordance with clause 2.5.2:
2.7.1 the Supplier shall promptly, modify and update the Platform, or any failing component thereof, and submit the Platform for re-testing; and
2.7.2 the Parties shall repeat the procedure as set out in clause 2.4 until Acceptance of the Platform or termination of this Agreement in accordance with clause 20 and such period shall be the “Remediation Period”.
2.8 The Customer agrees that it shall not be entitled to reject the Platform for any minor defect or failure in the Platform (“Immaterial Failure”) which the Supplier has agreed to fix and/or which has no material adverse effect on the performance or operation of the Platform.
2.9 This clause 2.4 shall be applied for any successive failures until the Platform is Accepted or the Agreement is terminated under clause 20.
2.10 Acceptance of the Platform shall be deemed to have taken place upon the occurrence of any of the following events:
2.10.1 The Customer uses any part of the Platform for any revenue-earning purposes or to provide services to the Members other than for test purposes; or
2.10.2 The Customer unreasonably delays the start of the Acceptance Test Plan or any retests for a period of five (5) Business Days on which the Supplier is ready to commence running the Acceptance Tests or retests.
2.10.3 The Customer fails to notify the Supplier of the decision to reject the Platform within five (5) Business Days of the completion of the Acceptance Period.
2.11 Where Acceptance occurs under clause 2.10, any notice of perceived failure under clauses 2.5, 2.7 and 2.9 shall be deemed to be an Immaterial Failure.
3.1 The Supplier grants to the Customer a non-exclusive, non-transferable licence to use the Platform for the duration of this Agreement with any corrections, modifications, enhancements, upgrades and/or any other changes thereto agreed in accordance with the terms of this Agreement, and, for the avoidance of doubt subject to the limitations detailed in clause 3.2 below.
3.2 The Customer shall only be entitled to utilise the Platform, in the (“Licensed Jurisdiction”), from a single web domain targeting of Users who are based in the Licensed Jurisdiction notwithstanding any User actually being or becoming located in a different jurisdiction.
4. Customers Obligations
4.1 The Customer shall:
4.1.1 Procure and renew their domain name each year;
4.1.2 Ensure all staff adopt a strong password policy, consisting of a minimum of 8 characters and one number;
4.1.3 Elect a Project Manager to collaborate regularly and promptly with the Supplier;
4.1.4 Participate in training workshops;
4.1.5 Use the Project Tool to create new tasks and report bugs;
4.1.6 Accept responsibility for all web content management including text, images, video and user-generated content;
4.1.7 Participate in testing of bespoke functionality (as defined in Schedule 1), while the Platform is in late stages of development;
4.1.8 Accept that since the Platform is built on Open Source technologies, updates to these technologies may need to be accommodated in the development and setup of the Platform; and
4.1.9 Operate the Platform diligently and carefully.
5. Scope of Services
5.1 Subject to the terms and conditions of this Agreement, and in consideration for payment of the Fees by the Customer to the Supplier, the Supplier shall supply and the Customer shall benefit from the following services for the Term, conditional upon the payment of the Fees being made (and during the Exit Phase, if Customer so elects):
5.1.1 the Hosting Services as contained in Schedule 2;
5.1.2 the Support and Maintenance Services as contained in Schedule 3;
5.1.3 the eTicket Customer Support Solution as contained in Schedule 10; and
5.1.4 the On-going Services as contained in Schedule 4.
(together, “the Services”)
5.2 The Customer will also benefit from any additional services the Parties may agree to from time to time.
6.1 In providing any of the Services, the Supplier shall:
6.1.1 act in accordance with the provisions of this Agreement;
6.1.2 act in accordance with any reasonable instructions given to it from time to time by the Customer or any third party acting on its behalf;
6.1.3 employ for the purposes of the Services only such persons as are suitably skilled, professionally qualified (if appropriate) and experienced;
6.1.4 act promptly, in a professional and courteous manner and using all reasonable skill and care appropriate to a provider of such Services in accordance with Good Industry Practice;
6.1.5 act in accordance with all Applicable Law; and
6.1.6 notify the Customer as soon as it becomes aware of any change in Applicable Law that might affect its provision of the Services.
7. Change Control Procedure
7.1 The Change Control Procedure shall be the procedure set out in Schedule 5 (Change Control) hereto.
7.2 For the avoidance of doubt, subject to clause 6.4, the Supplier shall endeavour to not make any changes to the Platform (in particular the production services, code, operating system, third party software, data and metadata) without the Customer’s prior written approval. Any such changes, approved in writing by the Customer, may in each case, be tested by the Customer and approved in the Staging Environment before being merged into the Live Environment.
7.3 Without prejudice to section 2.8 of Schedule 5 (Change Control), in the event an Unauthorised Change is made, the Supplier must inform the Customer promptly in writing and the Customer shall have the right to request that the change be immediately removed at no cost to the Customer.
7.4 Changes that involve security patches and urgent maintenance fixes shall not require written approval of the Customer, though such changes shall in due course be notified to the Customer.
8.1 The Customer shall pay the Supplier the Fees set out in Schedule 8 (Charges and Payments) hereto in consideration of the provision of the Services by the Supplier. The Supplier shall issue a VAT invoice in respect of the Fees.
8.2 All undisputed amounts in the invoices raised by the Supplier shall be paid by the Customer within thirty (30) days of receipt of the invoice.
8.3 Where the Customer reasonably and in good faith disputes any invoiced amount then it shall notify the Supplier in writing of the same within five (5) Business days from receipt of the invoice. Upon receipt of the notice by the Supplier, the parties shall promptly discuss the disputed amount in accordance with the Dispute Resolution Process. Where the outcome of the Dispute Resolution Process is that (i) the payment is due, the Customer shall make the payment within thirty (30) days of the decision being reached or (ii) the payment is not due, no further action shall be necessary.
8.4 The Supplier reserves the right to increase the Fees on an annual basis once per 12 consecutive months period, by no more than the increase of the UK Retail Price Index + 8% over such 12 month period. No increase shall take place during the first 12 months following the Commencement Date. Any proposed increase in the Fees shall be communicated to the Customer in writing no less than 90 days prior to the proposed effective date of the increase.
8.5 If the Customer fails to pay any amount payable by it under this Agreement, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 6% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be compounded monthly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9. Applicable Law and Legality
9.1 The Supplier shall obtain and maintain at its sole expense all approvals, authorisations, permits and licences required in the course of its business and those necessary for the performance of its duties under this Agreement.
9.2 To the extent that it relates only to the functionality of the Platform and/or is within the scope of the Services, the Supplier agrees to do all that the Customer and/or the applicable Regulator reasonably requires it to do in order for the Customer to comply with its requirements under Applicable Law.
9.3 The Supplier shall direct all enquiries from a Regulator of the Customer relating to the Customer’s receipt of the Services or this Agreement to the Customer unless the enquiry is specifically addressed to the Supplier by a Regulator, concerns the Supplier’s provision of the Services or as otherwise agreed in writing by the parties. The Supplier shall promptly provide a copy of any such enquiry specifically addressed to the Supplier to the Customer if permitted under Applicable Law.
9.4 The Supplier shall promptly provide the Customer, at the Customer’s request, with any Relevant Records that are reasonably required by Customer to enable Customer to comply with Applicable Law and Regulations.
9.5 Each of the Parties agrees and undertakes to the other that they shall:
9.5.1 have and maintain in place throughout the term of this Agreement, its own policies and procedures to ensure compliance with Anti-Corruption Laws (as amended) and shall, so far as is within their respective controls, enforce them where appropriate; and
9.5.2 (unless prohibited by Applicable Law) promptly report to the other any suspicious activity identified in connection with any activity relating to the performance of this Agreement.
9.5.3 comply with all Anti- Corruption Laws and Financial Sanctions relating to anti-bribery, terrorism and anti-corruption;
9.5.4 not engage in any activity, practice or conduct which would constitute an offence under sections 1,2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the United Kingdom;
9.5.5 (unless prohibited by Applicable Law) promptly report to the other any request or demand for any undue financial or other advantages of any kind received in connection with the performance of this Agreement; and
9.5.6 warrant that no offer, payment, consideration, or benefit of any kind, which constitutes or could be construed as an illegal or corrupt practice, has been or shall be made, either directly or indirectly, as an inducement or reward for the award or execution of this Agreement. Neither Party shall accept any payment or benefits of any kind from any party during the performance of the Services which could be construed as an illegal or corrupt practice.
10.1 Subject to clause 9.3, each Party shall keep and procure to be kept secret and confidential, the terms and provisions of this Agreement and all Confidential Information belonging to the other Party which is or has been disclosed as a result of the relationship of the Parties under this Agreement and shall not disclose or use the same save as envisaged under this Agreement (other than to their Affiliates, Subcontractors, consultants, agents, or employees, shareholders or potential shareholders and professional advisers who need to know the information).
10.2 Each Party shall ensure that where disclosure of Confidential Information is made to any of its (or its Affiliate’s) employees, shareholders or potential shareholders, contractors, consultants, agents or professional advisers (any of the foregoing, a “Person”), in each case: (a) it does so only if and to the extent such Person needs to know the same to enable the relevant Party to perform its obligations under this Agreement; and (b) such disclosure is made subject to obligations of confidentiality equivalent to those set out in this clause 9. Each Party shall be and shall remain responsible to the other Party in respect of any disclosure or use of such Confidential Information by a Person or other third party to whom disclosure is made.
10.3 The obligations of confidentiality detailed in this clause 9, shall not extend to any Confidential Information:
10.3.1 where such information is in the public domain, other than by reason of a breach of the obligations of confidentiality in this Agreement, or as a result of a breach of any other duty of confidentiality;
10.3.2 which either Party can show was in its written records prior to the date of disclosure of the same by the other Party; or
10.3.3 which it receives from a third party independently entitled to disclose it.
10.4 Either Party shall be permitted to disclose the Confidential Information of the other Party to the extent required or requested as a matter of law or as a requirement of any legal or regulatory authority (including that of any Regulator), provided that such Party:
10.4.1 gives the other Party notice of such compelled disclosure prior to making such disclosure (except where prohibited by Applicable Law from doing so); and
10.4.2 uses commercially reasonable efforts to provide the other Party with an opportunity to take such steps as it desires to challenge or contest such disclosure or seek a protective order.
10.4.3 only discloses the Confidential Information of the other Party as required by any protective court order that applies to such disclosure.
10.5 The provisions of this clause 9 shall survive the termination or expiry of this Agreement for whatever reason.
11. Platform Content
11.1 The Customer shall ensure that the Materials do not infringe any Applicable Laws, regulations or third-party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third-party Intellectual Property Rights) (“Inappropriate Content”).
11.2 The Supplier shall grant the Customer all necessary access to the Platform in order to update content and Member Materials or information held on the Platform, as well as all access to change, alter or replace the Member interface and graphics. The Customer will have no other right of access save as may be agreed between the Customer and the Supplier in writing.
11.3 The Supplier explicitly acknowledges it has no domain of control or influence over any aspect of the Platform content, where the content includes graphics, words, videos and/or other design and content elements created by the Customer, and will not under any circumstances access, edit, change, delete or otherwise manipulate such Platform content without advance written permission of the Customer.
11.4 The Supplier shall publish to the Platform only Materials provided or authorised by the Customer or this Agreement. The Customer acknowledges that the Supplier has no control over any content placed on the Platform by visitors (including Members) and does not purport to monitor the content of the Platform. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Platform may be Inappropriate Content.
11.5 The Customer shall indemnify the Supplier against all damages, losses, expenses, costs and other liabilities arising as a result of any action or claim that the Materials constitute Inappropriate Content.
11.6 The Supplier may include on the “About Us” page of the Platform or another page mutually agreed by the Parties the statement “Powered by WLCF” or similar with a link to a page of www.whitelabelcrowd.fund agreed in writing by the Parties.
12. Data Protection and Security
12.1 The Parties acknowledge and agree that the Customer is the Data Controller and the Supplier is a Data Processor on behalf of the Customer in respect of all the Customer Data.
12.2 The Supplier shall:
12.2.1 obtain, use and process the Customer Data in accordance with the laws of the United Kingdom applicable to privacy and confidentiality (including the DPA);
12.2.2 obtain, use and process the Customer Data only to the extent and in such a manner as is necessary for the purposes of providing the Services and in accordance with the Customer’s instructions from time to time and for no other purpose;
12.2.3 not transfer, process or manage Customer Data or any copy of such data outside of the United Kingdom without the prior written consent of the Customer;
12.2.4 not allow access to Customer Data by its personnel where such personnel is located outside the UK without the prior written consent of the Customer;
12.2.5 not disclose or transfer any of the Customer Data to any third party, including Subcontractors and Affiliates of the Supplier, without the Customer’s prior written consent;
12.2.6 keep the Customer Data fully and securely segregated from the data of any of the Supplier’s other customers;
12.2.7 inform the Customer of any request it receives from a Data Subject for access to such person’s Customer Data within 2 Business Days of receiving such request. The Parties acknowledge and agree that the Customer shall be responsible for dealing with such request from a Data Subject (as well as any associated dealings with the information commissioner (or equivalent officer or agency)) and accordingly the Supplier shall provide the Customer with its full co-operation and assistance in relation thereto;
12.2.8 inform the Customer immediately in the event of any loss or suspected or anticipated loss of the Customer Data caused by the Supplier, its Subcontractors, employees, agents or any third party acting on behalf of the Supplier (“Data Loss Incident”) or any actual or anticipated risk in relation to the same. In the event of a Data Loss Incident, the Supplier shall take all reasonable steps at no cost to the Customer to remedy or mitigate such loss and shall consult with the Customer in respect of such remediation and mitigation. The Supplier shall also indemnify the Customer in respect of any loss suffered by the Customer due to a Data Loss Incident; and
12.2.9 immediately inform the Customer in the event that one or more incidents have affected the operation of the Customer’s use of the Platform; and
12.2.10 inform the Customer immediately if an enforcement notice under the DPA is served on it.
12.3 Where the Customer has consented to the Supplier disclosing the Customer Data to a third party in accordance with clause 11.2.5, the Supplier shall procure that any such the Customer Data is only to be used and disclosed to the extent required for the proper performance of such third party’s duties and the Supplier shall ensure that it enforces this obligation.
12.4 The Supplier warrants that it has (and shall procure that any Subcontractor has) in place at all times appropriate technical and organisational security measures (including appropriate database software and equipment) to safeguard against any unauthorised or unlawful access, processing, use, disclosure, loss, theft, destruction or damage to the Customer Data (“Information Security”) and shall otherwise ensure that the Customer can comply with the seventh data protection principle of the DPA. Details of the Supplier’s Information security measures relating to Customer Data are set out in Schedule 7 (Disaster Recovery and Business Continuity).
12.5 The provisions of this clause 11 shall survive for a period of seven (7) years following the termination or expiry of this Agreement for whatever reason.
13. Intellectual Property Rights
13.1 All Intellectual Property Rights in the Platform (including in the content of the Platform and the Platform Software but excluding the Customer Materials and Customer Data or any data or materials developed by Customer), arising in connection with this Agreement shall be the property of the Supplier, and the Supplier hereby grants the Customer and Affiliates a non-exclusive, non-perpetual licence of such Intellectual Property Rights for the sole purpose of operating the Platform, excluding any additions made to the Platform purchased from the Supplier or otherwise by the Customer for the exclusive use of the Customer or visitors.
13.2 The Supplier shall indemnify the Customer against all damages, losses and expenses arising as a result of any successful claim that the Platform (but excluding the Customer Materials and Member Materials) infringes any Intellectual Property Rights of a third party, other than infringements referred to in clause 12.3.
13.3 Any Intellectual Property Rights arising for the specific benefit of the Customer, which relate to improvements or other modifications to the Platform, which are commissioned for exclusive development, as identified in advance by the Customer, will be assigned for the exclusive benefit and use of the Customer unless the Customer explicitly identifies them in Schedule 1 as for Open or Shared Source contribution.
13.4 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Customer Materials and/or Member Materials infringe the Intellectual Property Rights of a third party.
13.5 The indemnities in clauses 12.2 and 12.4 are subject to the following conditions:
13.5.1 the indemnified party promptly notifies the indemnifier in writing of the claim;
13.5.2 the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent, not to be unreasonably withheld or delayed;
13.5.3 the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
13.5.4 the indemnified party allows the indemnifier full involvement with (but not control over) the litigation and settlement of any action or claim.
13.6 The indemnities in clauses 12.2 and 12.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
14.1 The Supplier hereby warrants and undertakes that:
14.1.1 the Platform shall, function materially in accordance with the Specification, minor errors excluded;
14.1.2 it shall comply with all Applicable Law;
14.1.3 it shall perform and procure the performance of its obligations under this Agreement using appropriately qualified and trained personnel of required skill, experience and qualifications and with all due skill, care and diligence and to such standard as required under this Agreement;
14.1.4 it has assumed all necessary rights, responsibilities and obligations to enable it to enter into this Agreement;
14.1.5 it has (and shall continue to have for the Term and Exit Phase) all rights in and to the Platform and the Supplier Materials and any other materials used to perform the Services which are necessary for Supplier to perform its obligations, and the Customer to receive the Services and exercise its rights, under this Agreement;
14.1.6 the Platform, the Customer Data and the Customer Material stored by the Supplier are kept under secure conditions with appropriate back-up arrangements in place;
14.1.7 any hosting provided under the terms of this Agreement will always be based in the United Kingdom;
14.1.8 it has and shall continue to abide by, its Business Continuity and Disaster Recovery Plan as set out in Schedule 7 (Disaster Recovery and Business Continuity); and
14.1.9 it shall use all reasonable endeavours to ensure that no third party is able to introduce any Software Virus into any of the Customer’s systems as a result of the Customer’s receipt of the Services. The Supplier’s reasonable endeavours shall include use of current release virus detection software in accordance with Good Industry Practice.
14.1.10 all rights, title and interest and all IPR in the Platform is and, subject to the terms of this Agreement, shall remain vested in the Supplier;
14.1.11 neither it nor any of its Affiliates or Subcontractors have done anything in relation to the Software in the Platform or the Source Code thereto (but excluding any Open Source Software forming part of the Platform) that would or could:
(a) require the Supplier to disclose, licence or otherwise make available any part of the Platform or Source Code relating to the Platform;
(b) impose any material limitation, restriction or condition on the Supplier with respect to its use and/or the ability to comply with its obligations under this Agreement.
14.2 The Customer acknowledges that the Platform is built using complex internet based technologies and that as such, the Platform may not always be free from defects, errors and bugs.
14.3 Whilst the Supplier will take all reasonable care and make all reasonable effort to ensure that the Platform is available to access over the internet at all times (save in relation to planned or emergency maintenance of the Server) no warranty is given that the Platform will be available to access by the public at all times without interruption. In the event of interruption the Supplier shall inform the Customer as soon as practically possible.
14.4 The Supplier shall not be liable under this Agreement for any failure of the Platform to perform substantially in accordance with the Platform Specification is caused by any Customer Materials and/or Member Materials.
14.5 This Agreement sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Platform and the Services.
14.6 The Customer warrants that it shall:
14.6.1 not use the Platform in breach of any of the terms of this Agreement;
14.6.2 have in place measures to prevent the transmission of any unlawful, discriminatory, threatening, libellous, defamatory, obscene, scandalous, inflammatory, pornographic or profane material on, to, or through the Platform. Should such material be transmitted on the Platform despite the Customer’s measures, the Customer shall promptly take steps to remove such material;
14.6.3 not use the Platform for carrying out of fraud or other criminal offence;
14.6.4 on reasonable request, supply without delay to the Supplier all information reasonably requested by the Supplier in relation to the Customer’s or Member’s use of the Platform;
14.6.5 keep secure the Member names, account details and passwords for the Platform;
14.6.6 renew the domain, SSL Certificates and use a reliable Domain Name Server, which will be configured to point to the Hosting Service Provider;
14.6.7 operate at all times in compliance with all Applicable Laws.
14.7 Subject to compliance with any requirements applicable to the disclosure of Confidential Information and subject to compliance with any Applicable Laws, the Customer shall promptly provide the Supplier with all such information, documents and instructions as the Supplier reasonably require to fulfil its obligations under this Agreement.
14.8 Subject to compliance with any procedures applicable to the disclosure of Confidential Information and subject to compliance with any applicable laws, the Customer shall promptly comply with any reasonable and legal request for instructions which the Supplier may make in order to perform its duties efficiently under this Agreement, and shall promptly furnish to the Supplier a copy of all minutes of the meetings and of the resolutions adopted by the Customer as they apply to the Services or adopted by the Customer which the Supplier reasonably and legally requests.
14.9 The Supplier shall not be liable for any failure to comply with its obligations under this Agreement, to the extent to the extent that such failure arises from the Customer’s failure to comply, within a reasonable time, with the Supplier’s request to provide such authorisations, instructions, approvals, information and documents as the Supplier may reasonably require.
14.10 The provisions of this clause 13 shall survive the termination or expiry of this Agreement for whatever reason.
15. Limitations of Liability
15.1 This clause 14 sets forth the entire liability of the Supplier, and the sole and exclusive remedies of the Customer, in respect of the performance, non-performance or purported performance of this Agreement and any services (including any Services).
15.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
15.3 The Customer is wholly responsible for any claim by any Member of the Platform, including any borrower or any lender, relating to their use of the Platform and the execution by them of any loan agreement or other transaction, and the Customer shall have sole responsibility for satisfying themselves that the legal template agreements that they may make available to the Members (whether or not made available to the Customer by the Supplier), and the legal agreements forming part of the Platform, are satisfactory and fit for purpose.
15.4 Nothing in this Agreement excludes or limits the Supplier’s liability for:
15.4.1 death or personal injury resulting from any negligence (as the term is defined in the Unfair Contract Terms Act 1977) of the Supplier or its officers, employees, agents or subcontractors;
15.4.2 any breach of any undertaking as to title, quiet possession and freedom from encumbrances implied by law;
15.4.3 fraud or fraudulent misrepresentation on the part of the Supplier;
15.4.4 any other form of liability that cannot be limited or excluded under English law.
15.5 The Supplier does not exclude but does limit liability for any fundamental misrepresentation, including any misrepresentation as to a matter fundamental to its ability to perform its obligations under this Agreement.
15.6 Subject to conditions 14.4,14.5 and 14.6, the Supplier shall not be liable for:
15.6.1 loss of actual or anticipated profits; or
15.6.2 loss of business; or
15.6.3 depletion of goodwill and/or similar losses; or
15.6.4 loss of anticipated savings; or
15.6.5 loss of goods; or
15.6.6 loss of contract; or
15.6.7 loss of use; or
15.6.8 loss or corruption of data or information; or
15.6.9 any other special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
15.7 For the avoidance of doubt, clause 14.6 applies whether such damage or loss is direct, indirect, consequential or otherwise.
15.8 The Supplier shall effect and maintain with a reputable insurance company such suitable and appropriate insurance policies as it is required to hold under applicable Regulations and such other policies as a prudent business conducting similar operations in accordance with Good Industry Practice would maintain.
15.9 The Supplier’s total liability in contract, and the total liability of the Supplier (and of its employees, contractors and agents) in tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, non-performance or contemplated performance, of this agreement shall be:
15.9.1 in relation to any liability relating to the Setup, 110% of the Setup Fee;
15.9.2 in relation to any liability (excluding a liability relating to the Setup as set out in clause 14.2.1), 110% of the Fees payable by the Customer under this Agreement during the 12 months immediately preceding the act or omission giving rise to the liability (or, if the relevant liability arises within one year after the Commencement Date, an amount equal to 110% of the Fees likely to be payable by the Customer in the first 12 months of the Commencement Date.
16. Audit and Review
16.1 The Supplier shall, and shall procure that its Subcontractors shall, allow the Customer, its appointed third parties and/or Regulators to conduct appropriate audits of the activities and records of the Supplier, and, if applicable, of the Subcontractor, relating to the performance of the obligations under this Agreement and/or Supplier’s performance under Applicable Law and the Supplier shall, and shall procure that its Subcontractors, provide full cooperation in relation thereto including cooperating with reasonable requests from any Regulator. For the avoidance of doubt, an audit may include any of the following:
16.1.1 the accuracy of the Fees;
16.1.2 the Supplier’s compliance with the Agreement;
16.1.3 the Supplier’s compliance with Applicable Law;
16.1.4 verification of Customer Data backup and recovery procedures;
16.1.5 access to and verification of Hosting Service Provider’s security and data back-up procedures; and
16.1.6 penetration testing of the security procedures and vulnerability assessments.
16.2 For the purposes of clause 15.1, the Supplier grants to the Customer, its appointed third parties and/or Regulators a right of access to the Supplier’s premises, personnel, systems, devices, procedures, records and other material or information (but for the avoidance of doubt, excluding the Source Code for the Platform) which is relevant to the provision of the Services and Platform and/or Supplier’s performance under Applicable Law and as reasonably requested by the Customer, its appointed third parties and/or Regulators, including adequate levels of access to the Supplier’s systems to allow the Customer or its appointed third parties to undertake onsite and/or remote audits.
16.3 The Supplier shall allow the Regulator to carry out the audits referred to in clauses 15.1 and 15.2 at a frequency of not more than once in any six (6) month period and upon giving at least thirty (20) Business Days’ prior notice, unless otherwise required by Applicable Law, the Regulator determines that an audit is required sooner and/or upon less notice (if any), or in the event of an emergency or crisis.
16.4 The Regulators and auditors shall have the right to make copies of any records and/or documents required for the purpose of meeting the Customer’s audit and regulatory requirements.
16.5 The Supplier agrees to undergo annual third-party penetration testing of all the physical and virtual infrastructure of the Platform and, if applicable, the Services at the request (and cost) of the Customer.
16.6 The Customer shall use all reasonable endeavours to minimise any disruption to (i) the operations of the Supplier or any Subcontractor, or (ii) the performance of the Services caused by an audit.
16.7 Following an audit, the Customer shall, if permitted under Applicable Law, discuss its findings with the Supplier and, if appropriate, but without prejudice to the Customer’s other rights and remedies, the Parties shall agree to a plan (including a timetable to implement the plan) to address any concerns identified in the audit (a “Remediation Plan”). If the audit demonstrates that the Supplier is failing to comply with any of its obligations under this Agreement or Applicable Law, then, without prejudice to the Customer’s other rights and remedies, the Supplier shall comply with the Remediation Plan and shall take all other necessary steps to remedy its failure and subsequently comply with its obligations at no additional cost or expense to the Customer. If the Parties fail to agree on a Remediation Plan, the matter shall be dealt with in accordance with the Dispute Resolution Process. The Supplier shall provide a written report to the Customer setting out its progress against targets specified in the relevant Remediation Plan every (three) 3 months until all targets have been met. The Supplier shall provide its first report to the Customer (three) 3 months after the date that the relevant Remediation Plan was agreed by the parties.
17. Relevant Records Retention
17.1 The Supplier shall, and shall ensure that each of the Subcontractors shall, keep or cause to be kept complete and accurate Relevant Records.
17.2 Subject to Clause 16.4, the Supplier shall maintain each of the Relevant Records in a secure and suitable facility readily accessible to the Customer or appointed third parties and any the Regulator until the date which is the earliest date specified by Applicable Laws and Regulation in respect of each Relevant Record, commencing from the creation of that Relevant Record (the “Retention Period”).
17.3 The Supplier shall ensure that any software and hardware and any documentation, including maintenance documentation, required to retrieve and read any Relevant Record (the “Retrieval Systems”) are retained until the expiry of the Retention Period, or provided at the Supplier’s sole expense for copying, reformatting and other necessary maintenance to ensure the availability and usability of those Relevant Records until the expiry of the Retention Period.
17.4 The Supplier shall give the Customer not less than 60 days prior written notice of the Supplier’s intention to destroy or otherwise dispose of any Relevant Record or Retrieval System, and shall not destroy any Relevant Record or Retrieval System unless and until the Customer has had a reasonable opportunity to recover that Relevant Record from the Supplier and the Customer has not requested that the Relevant Record be delivered to it (together with the Retrieval Systems).
18. Governance, Review Meetings and Management Information
18.1 The Parties shall hold monthly review meetings or at such other frequency requested by the Customer (the “Review Meeting”). At least one week prior to each review meeting the Supplier shall provide the Customer with Management Information.
18.2 During the Review Meeting, the Parties will discuss the overall relationship between the Parties, the performance of the Platform and the management of the Agreement as a whole, including:
18.2.1 Fees/invoice/ payment review;
18.2.2 the delivery of the Services;
18.2.3 Service Level measures against performance;
18.2.4 the Management Information;
18.2.5 any unauthorised changes to the production service without the Customer’s prior written consent;
18.2.6 any considerations arising out of or in connection with Applicable Law;
18.2.7 any issues arising and actions to remedy these.
18.3 In the event of any serious failure in the Platform and/or the Services or other major and urgent event impacting upon or likely to impact upon the Services or the Agreement in a material respect, either Party shall be entitled to ask for a meeting between the Project Managers as soon as possible and the other Party shall comply with such a request.
18.4 Each Party shall appoint a Project Manager to attend review meetings on its behalf and to otherwise act as a central point of contact responsible for the day to day management of the relationship between the Parties and be the first point of contact for any issues arising out of this Agreement andthe performance of the Services.
18.5 The Supplier shall procure the attendance (in person [at the Supplier’s Premises] or by conference call at the Customer’s election) of its Project Manager and such other representatives as the Customer may reasonably request at a Review Meeting.
18.6 Without prejudice to the Customer’s other rights or remedies, the Supplier shall notify the Customer, as soon as reasonably practicable after it comes to the Supplier’s attention, of any event or circumstance affecting the performance of the Supplier’s obligations under this Agreement which has or is likely to have a material adverse impact on the Customer or the provision of the Services, in whole or in part, including any relevant:
18.6.1 delay or failure of performance of the Services; or
18.6.2 delay or failure of performance under, or termination of, any Subcontract; or
18.6.3 threat of or planned industrial action, including any strikes or lock-outs; or
18.6.4 interruption or unavailability of power supplies or telecommunications networks; or
18.6.5 loss or corruption of any Customer Data.
19. Business Continuity and Disaster Recovery
19.1 Each Party shall comply with its obligations set out in the Business Continuity and Disaster Recovery Plan.
19.2 The Supplier shall maintain and test the Business Continuity and Disaster Recovery Plan to ensure its effectiveness on an annual basis or when the Customer reasonably requests such a test on the basis that there has been a material change to the operational circumstances or business requirements of either Party. The Customer shall have the right to attend and monitor any such tests and the Supplier shall provide the Customer with written results of such testing and details of the steps taken to remedy any shortcomings or failings of the plan identified during the testing. For the avoidance of doubt, the Business Continuity and Disaster Recovery Plan will at very least meet the minimum standards prescribed from time to time by any Regulator.
19.3 The Supplier and the Customer shall take any precautionary actions which are specified in the Business Continuity and Disaster Recovery Plan. Any proposed changes to the Business Continuity and Disaster Recovery Plan shall be subject to the Change Control Procedure, provided that (unless otherwise agreed) any amendments to the Business Continuity and Disaster Recovery Plan may only be made if the revised Business Continuity and Disaster Recovery Plan shall provide at least the same level of business continuity as the then-current Business Continuity and Disaster Recovery Plan.
19.4 Each Party shall notify the other Party as soon as reasonably practicable if it believes that there has been, or is likely to be, a material disruption to business continuity that requires the implementation of the Business Continuity and Disaster Recovery Plan. The Parties shall then immediately implement the Business Continuity and Disaster Recovery Plan and the Parties shall perform their obligations set out in the Business Continuity and Disaster Recovery Plan.
19.5 To the extent that the Supplier holds Customer Data on its own systems, it shall perform a secure backup of all Customer Data that the Supplier is responsible for scanning and archiving and shall ensure that an up-to-date backup is stored in accordance with the Business Continuity and Disaster Recovery Plan and is available to the Customer at all times upon reasonable prior written request and is delivered to the Customer at regular intervals to be agreed between the Parties. The Supplier shall ensure that any of its systems on which the Supplier holds Customer Data (including back-up data) and the Retrieval Systems are secure systems that comply with Good Industry Practice in relation to data integrity and data back-up and recovery processes and procedures to ensure no loss of Customer Data.
20.1 The Supplier shall have the right to subcontract the performance of the Services. The Supplier shall ensure that all Subcontractors have the necessary ability, resources, qualifications, integrity and commitment to carry out their activities to the standards required by this Agreement and Applicable Law and shall effect and maintain the following:
20.1.1 records of the identity of all Subcontractors and their activities;
20.1.2 clearly defined reporting structures between the Supplier and all Subcontractors;
20.1.3 controls overall Subcontractors to ensure their compliance with the Service Levels and procedures for monitoring such compliance and for reviewing, suspending and terminating agreements with any Subcontractor if the Subcontractor fails to comply with the Service Levels or Applicable Law; and
20.1.4 an ability to take over responsibility for the provision of ongoing Services from Subcontractors.
20.2 The Supplier acknowledges and agrees that (i) under this clause 19, it is and shall at all times remain responsible for all acts and omissions of its Subcontractors, and in particular those with regard to the processing of Personal Data in accordance within clause 19.3, and (ii) the subcontracting of all or any part of Supplier’s obligations set out in this Agreement to any Subcontractor shall not relieve the Supplier from any obligation or liability under this Agreement. This shall include ensuring that each Subcontractor complies with the Customer Policies where applicable.
20.3 The Supplier may authorise a Subcontractor to process the Customer Data as a further Data Processor on behalf of the Customer provided that:
20.3.1 such processing is contemplated by the consent obtained pursuant to clauses 19.1; and
20.3.2 the contract between the Supplier and any such Subcontractor is on terms providing equivalent rights and protections for the Customer with regard to the processing of Customer Data by the Subcontractor as those set out in this Agreement and in particular as in clause 11 and provided that the Supplier enforces such rights against the Subcontractor where it is appropriate to do so.
20.4 Where the Customer is not reasonably satisfied with any Subcontractor it may request that the Supplier terminate the subcontracting arrangements with such Subcontractor in order to either provide the subcontracted Services itself or appoints an alternative subcontractor in accordance with this clause 19.
21. Term and Termination
21.1 This Agreement shall commence on the Commencement Date and shall (subject to earlier termination pursuant to this clause) extend automatically on the 5th anniversary of the Commencement Date unless the Parties agree in writing to terminate the agreement. Notice of termination must be provided 90 Business Days in advance.
21.2 Without prejudice to the other rights or remedies which the Party may have, either Party may terminate this Agreement at any time with immediate effect by giving written notice to the other if the other:
21.2.1 has a resolution passed for its winding up or a court makes an order to that effect (except as part of a bona fide reconstruction or amalgamation);
21.2.2 becomes or is declared insolvent, or convenes a meeting of its creditors or makes a proposal or arrangement with its creditors (except as part of a bona fide reconstruction or amalgamation);
21.2.3 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over the whole or any part of its business or assets;
21.2.4 any event occurs, or proceedings are taken, with respect to the Customer in any other jurisdiction that has an effect which is equivalent or similar to any of the events mentioned in clauses 20.2.2 to 20.2.4 (inclusive
21.2.5 Either Party may terminate this Agreement at any time with immediate effect by giving written notice to the other if:
21.2.6 the other Party commits a material breach of this Agreement (including repetitive, or a substantial number of, minor breaches) and (if capable of remedy) fails to remedy such breach within fourteen (14) days of being notified in writing of such breach. For the avoidance of doubt, in relation to the Customer, the failure to pay any Fees (which are not the subject to a bona fide dispute) by their due date in any 3 consecutive monthly periods;
21.2.7 the Supplier is entitled to do so in accordance with any other termination rights specified in this Agreement.
21.3 Either Party may terminate this Agreement at any time with immediate effect by giving written notice to the other if:
21.3.1 the other Party commits a material breach of this Agreement (including repetitive, or a substantial number of, minor breaches) and (if capable of remedy) fails to remedy such breach within fourteen (14) days of being notified in writing of such breach. For the avoidance of doubt, in relation to the Customer, the failure to pay any Fees (which are not the subject to a bona fide dispute) by their due date in any 3 consecutive monthly periods;
21.3.2 the Supplier is entitled to do so in accordance with any other termination rights specified in this Agreement.
21.4 The Customer may terminate this Agreement:
21.4.1 at any time, without cause, by giving the Supplier no less than twelve (12) months’ written notice of its desire to terminate the Agreement. Where such termination notice is given the Agreement shall automatically terminate on the notice’s expiry unless otherwise agreed by the Parties;
21.4.2 immediately upon notice, in the event of failure of Acceptance Testing after the first Remediation Period;
21.4.3 where otherwise specifically provided for in any of the Schedules.
22. Preparation for and Consequences of Termination
22.1 Development and Maintenance of Exit Management Plan
22.1.1 On the termination of the Agreement, the Parties shall execute their respective obligations set out in the Exit Management Plan.
22.1.2 The Supplier will, if reasonably necessary, issue an update of the Exit Management Plan on an annual basis and within fifteen (15) days of a material change to the Platform, Software and/or the Services. Any updated Exit Management Plan will be subject to the Customer’s review and shall be signed once updated.
22.2 Provision of Termination Assistance
22.2.1 In connection with the termination of this Agreement for whatever reason, and during the Exit Phase, the Parties shall perform their respective obligations as stated in the Exit Management Plan. The Customer shall have the right, at Customer’s request, to continue receiving the Services during the Exit Phase or for such period as may be required by the Regulator. The Customer shall identify which of the Services are to continue during the Exit Phase and which are to be ceased within such shorter period as the Customer may specify. Any Service provided during the Exit Phase as provided for in this clause 21.2.1 shall be charged to the Customer on the same basis as that set out in Schedule 8 (Charges and Payment).
22.2.2 In addition:
(a) the Supplier shall provide the Customer and Successor Operator with any assistance necessary for the transfer of the Services, Platform and/or IPR in the Platform from the Supplier to the Successor Operator to minimise the disruption or deterioration of the Services, Platform and/or IPR in the Platform, or failure to achieve the Service Levels, and so as to prevent or mitigate any inconvenience to the Customer or its Members;
(b) the Supplier and the Customer shall proactively identify any additional information and activities, other than those listed in the Exit Management Plan needed to meet the objectives set out in clause 21.2.1 above and shall notify the other of such additional information and activities and make such amendments to the Exit Management Plan as are reasonably necessary;
(c) the Supplier shall discuss and explain the provision of the Services with the Customer and Successor Operator to allow them to gain a sufficient understanding of and familiarity with the Services, systems documentation and processes used in providing the Services to enable the Customer or Successor Operator to provide services similar to the Services;
(d) at the Customer’s request, the Supplier shall enter into a period of parallel running between the Services and the services provided by the Successor Operator or assumed by the Customer; and
(e) the Supplier shall provide to the Customer or Successor Operator all the data, information and the materials of the Customer relevant to the terminated Services (including the Customer Data and Customer Materials) in its then current format or in a format reasonably requested by the Customer, together with copies of all related documentation used in the provision of the Services which the Customer or Successor Operator reasonably requires.
22.2.3 The Parties acknowledge that the list of activities above is not exhaustive and that the Customer may request other support and assistance from the Supplier, and Supplier shall provide such support and assistance to the extent reasonably necessary.
22.2.4 Any cost associated with the provision of termination assistance shall be agreed by the Parties in the Exit Management Plan. In determining these costs, the same principles as those set out in Schedule 8 (Charges and Payment) shall be applied.
22.2.5 Except as expressly stated in the Exit Management Plan, the obligations stated in this clause 21.2 shall be in addition to and not in substitution for the provision of the Services and the Supplier shall continue to provide the Services on the terms and conditions of this Agreement during the Term (and, if applicable, the Exit Phase).
23.1 Except where either Party suffers an insolvency event, each Party agrees that during the Term and for a period of one (1) calendar year following the expiry or termination of this Agreement, not to solicit for employment, employ, or otherwise contract with or engage, either directly or indirectly (except for any bona fide public recruitment advertising campaign) any of the other Party’s employees, agents or consultants or persons who were former employees, agents or consultants of the other Party within a six (6) month period prior to the proposed hiring date.
23.1.1 Clause 22.1 shall not apply in the case of Freshinc Ltd, for the purpose of design work undertaken that is not in connection with the Platform. Any design work for the website should be undertaken via WLCF with Freshinc Ltd as the subcontractor.
23.2 Each Party hereby agree that the restrictive covenant in clause 22.1 is reasonable and necessary for the protection of the value of the Parties’ respective businesses and the investment made by each in its personnel, and that having regard to that fact those covenants do not work harshly on it.
24.1 The Parties acknowledge and agree that the TUPE Regulations are not intended to apply to any person as a consequence of the termination, in whole or in part, of this Agreement or the Supplier’s provision of the Services.
24.2 The Supplier agrees that it shall (and that it shall procure that any Subcontractor shall) ensure that no persons working for the Supplier (and any Subcontractor where applicable) shall be a part of an ‘organised grouping essentially dedicated’ to providing the Services, as described in the TUPE Regulations and the Supplier shall take all necessary steps (and ensure that any Subcontractor takes all necessary steps) to ensure that no person transfers to the Customer upon the termination or expiry of this Agreement for any reason (in whole or in part).
24.3 The Supplier will indemnify Customer and any Successor Operator against all Liabilities arising out of (i) the contract of employment of any person being found or alleged to have transferred to Customer or any Successor Operator or (ii) any person being found or alleged to have the right to become employed by Customer or any Successor Operator or (iii) liability for any act or omission (including dismissal) in respect of any person who is an employee being found or alleged to have transferred to Customer or any Successor Operator by reason, in any of the foregoing cases, of the TUPE Regulations applying to such person as a consequence of the termination, in whole or in part, of this Agreement or the Supplier’s provision of the Services, including, without limitation, any Liabilities arising out of the dismissal of such person or any failure in respect of any obligation to inform or consult with such person or their representatives under the TUPE Regulations.
24.4 The Supplier confirms that the Customer may indemnify any Successor Operator in respect of any and all Liabilities arising in the circumstances described in Clause 23.3 and the indemnity from the Supplier in Clause 23.3 shall include all Liabilities that Customer incurs as a consequence of granting such an indemnity.
24.5 Any Successor Operator may enforce the terms of Clause 23.3 and the Contracts (Rights of Third Parties) Act 1999 shall apply accordingly save that the consent of any Successor Operator shall not be required to vary or rescind the terms of this Agreement.
25. Dispute Resolution
25.1 It is the intention of the Parties to resolve any Dispute informally through discussions by the following individuals:
|Supplier Contact||Customer Contact|
|1st Level||Project Manager||Project Manager|
|2nd Level||Chief Technology Officer or Managing Director||Chief Technology Officer|
|3rd Level||Managing Director||Chief Executive Officer|
25.2 Each level shall have three (3) Business Days, or such other period the Party raising the Dispute may agree, to meet to discuss and resolve a Dispute before it is escalated to the next level. If, within three (3) Business Days, or such other period the Party raising the Dispute may agree, of the Dispute having been referred to the 3rd level contacts no agreement has been reached, the Dispute Resolution Procedure shall be deemed to have been exhausted in respect of the Dispute, and each Party shall be free to pursue the rights granted to it by this Agreement in respect of such Dispute without further reference to the Dispute Resolution Process.
25.3 The Supplier may withhold the provision of Services and access to the Platform if any dispute remains unresolved within 6 weeks from the date of raising the dispute.
26.1 All media releases, public announcements and public disclosures by either Party relating to this Agreement or its subject matter, including promotional or marketing material, shall be coordinated with the other Party and approved jointly by the parties in writing prior to release.
27.1 The Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Supplier. The Supplier reserves the right to assign or sub-contract any or all of its rights and obligations under this Agreement without the Customer’s further consent to such assignment or sub-contract.
28. Force Majeure
28.1 The Party claiming the Force Majeure Event (the “Claiming Party”) shall not be in breach of this Agreement or otherwise liable to the other Party (the “Non-claiming Party”) for any delay in performance or any non-performance of any obligation under this Agreement if and to the extent that the delay or non-performance is owing to a Force Majeure Event. This clause only applies if:
28.1.1 the Claiming Party could not have avoided the effect of the Force Majeure Event by taking precautions that, having regard to all matters known to it before the occurrence of the Force Majeure Event, it ought reasonably to have taken but did not take; and
28.1.2 the Claiming Party has used all reasonable endeavours to mitigate the effect of the Force Majeure Event and to carry out its obligations under this Agreement in any other way that is reasonably practicable.
28.2 The Claiming Party must promptly notify the Non-claiming Party of the nature and extent of the circumstances giving rise to the Force Majeure Event.
28.3 The Non-Claiming Party may terminate this Agreement immediately on written notice if the Force Majeure Event continues for more than thirty (30) days and the Claiming Party shall provide the Non-Claiming Party with a pro-rata refund for all Fees paid in advance regarding unused Services. The Non-Claiming Party shall have no further liability for any Fees for unused Services if terminated under clause 27.3.
29.1 Without prejudice to any other rights or remedies that either Party may have, both Parties acknowledge and agree that damages alone would not be an adequate remedy for any breach by the other Party of the provisions of this Agreement and that accordingly, notwithstanding clause 24, each Party shall be entitled to seek the remedies of injunction, specific performance, delivery up or other equitable relief for any threatened or actual breach of the provisions of this Agreement by the other Party.
29.2 Any notice required to be given under this Agreement must be given in writing and must be sent to the registered office of the other Party, for the attention of its Project Manager and may be delivered by email.
29.3 No failure, delay or partial exercise by a Party in exercising any right under this Agreement shall operate as a waiver of that right.
29.4 The provisions of this Agreement are severable and distinct from one another and if at any time any provision of this Agreement is found to be illegal or unenforceable, it shall to that extent be deemed not to form a part of this Agreement but that shall not affect the legality, validity or enforceability of the remaining provisions of this Agreement, each of which shall remain in full force and effect.
29.5 This Agreement constitute the entire agreement between the Parties in relation to the Platform and the Services and supersedes all prior agreements, understandings or discussions (whether written or oral) between the Parties other than representations made fraudulently. Both Parties acknowledge that they are not entering into this Agreement in reliance on any representation not expressly set out in this Agreement.
29.6 No variation or amendment of this Agreement shall be valid unless it is in writing and is signed by a duly authorised officer of each Party.
29.7 Except as expressly provided in clause 23.5, the Parties do not intend that any provisions of this Agreement should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to this Agreement.
29.8 This Agreement does not create a partnership or joint venture of any kind between the Parties and shall not be deemed to constitute a relationship of employer and employee between the Parties, nor does it create an exclusive relationship between the Parties and (except as expressly provided in this Agreement) neither Party shall enter into or have authority to enter into any engagement or make any representations or warranties on the other Party’s behalf, nor shall they seek to otherwise bind or oblige the other Party in any way.
29.9 This Agreement and any non-contractual obligations arising out of or in connection with it are governed by and shall be construed in accordance with the Laws of England and Wales and, subject to clause 24, all Disputes shall be subject to the exclusive jurisdiction of the English Courts.
29.10 This Agreement may be executed and delivered in any number of counterparts, each of which so executed shall be an original, but together shall constitute one and the same instrument.