What’s in these terms?

These terms tell you the rules for using our application at surveyorcrm.com. Any reference to the “Customer” refers to the parties who subscribe to our application and any reference to the “Supplier” refers to us as The Prop Tech Group Ltd. These following Product Terms make up the “Agreement”.

We recommend that you take the time to carefully read, and make sure you fully understand, everything in this Agreement.

 

1. Definitions & Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

Authorised Users: those employees, agents and independent contractors of the Customer whose details are set out in the Agreement Details, where one has been provided, or as stated on the Customer’s invoice and who are authorised by the Customer to use the Services, in accordance with the terms of this Agreement.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in the UK are open for business.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.6 or clause 13.7.

Customer Data: the data inputted by the Customer (including Personal Data), Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, and which might include but shall not be limited to name, email address, file uploads and site comments/notes.

Data Protection Legislation: the Data Protection Act 1998 (the DPA) and from May 25th 2018, the General Data Protection Regulation (EU) 2016/769 (the GDPR) or such other domestic legislation that supplements and/or implements it.

Data Subject’s Rights: the requests exercising or purporting to exercise rights under sections 7, 10, 11 or 12 of the DPA or Chapter 3 of the GDPR.

Effective Date: the date upon which the Services are to commence, as set out in the Agreement Details, where one has been provided, or as stated on the Customer’s invoice.

Initial Subscription Term: the initial term of this Agreement as set out in the Agreement Details, where one has been issued or as stated on the Customer’s invoice. Where this has not been stated it is a 3 month initial term for monthly plans and 12 month initial term on annual plans. There is no minimum term for Pay as You Go plans, however, there is a setup fee. Normal Business Hours: 10:00 am to 5:00 pm local UK time, each Business Day.

Plan: the relevant payment plan chosen by the Customer details of which can be found at www.surveyorcrm.com/pricing

Privacy Policy: information relating to the collection, use, and disclosure of Customer Data, available at surveyorcrm.com/privacy-policy or any other such domain notified to the Customer as said document may be amended from time to time at the Supplier’s discretion.

Renewal Period: the period described in clause 15.1.

Services: the subscription services provided by the Supplier to the Customer under this Agreement via surveyorcrm.com or any other domain notified to the Customer by the Supplier from time to time.

Software: the online software applications provided by the Supplier as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Agreement Details, where one has been provided, or as stated on the Customer’s invoice.

Subscription Term: has the meaning given in clause 15.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 10.1 which entitle Authorised Users to access and use the Services in accordance with this Agreement.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or another body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 Unless the context otherwise requires, the terms defined and referred to in this Agreement have the meaning prescribed in this Clause 1 or the Data Protection Regulation.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.10 A reference to writing or written includes email but not faxes.

 

2. User subscriptions

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 10.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s personal purposes (if the Customer is a consumer) or internal business operations (if the Customer is a business).

2.2 In relation to the Authorised Users, the Customer undertakes that:
a. the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
b. it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
c. each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
d. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
e. it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted by the Supplier with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
f. if any of the audits referred to in Clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
g. if any of the audits referred to in Clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Agreement Details, where one has been provided, or as stated on the Customer’s invoice, within 10 Business Days of the date of the relevant audit.

2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
a. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
b. facilitates illegal activity;
c. depicts sexually explicit images;
d. promotes unlawful violence;
e. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
f. is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.4 The Customer shall not:
a. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
ii. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
b. access all or any part of the Services in order to build a product or service which competes with the Services; or
c. use the Services to provide services to third parties; or
d. subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
e. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Clause 2.

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

 

3. Additional user subscriptions

3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Agreement Details, where one has been provided, or as stated on the Customer’s invoice, and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement and in accordance with the features of the Plan.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 7 days of its approval of the Customer’s request.

3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Agreement Details, where one has been provided, or as stated on the Customer’s invoice, or as may be specified by the Supplier and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

3.4 Similarly, if the Supplier approves a request to reduce the number of User Subscriptions, part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date that the request is approved by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

 

4. Upgrade and Downgrade options

4.1 With the undertaking in Clause 4.5 withstanding, if the Customer wishes to upgrade their Plan, the Customer shall submit a request to do so via the Software. The Supplier shall evaluate such request to upgrade their Plan and respond to the Customer with approval or rejection of the request. If the Supplier approves the Customer’s request to upgrade their Plan, the Customer shall pay to the Supplier the relevant fees for such Plan as specified by the Supplier and, if such upgrade is purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4.2 With the undertaking in Clause 4.5 withstanding, if the Customer wishes to downgrade their Plan, the Customer shall submit a request via the Software. The Supplier shall evaluate such request to downgrade their Plan and respond to the Customer with approval or rejection of the request. If the Supplier approves the Customer’s request to downgrade their Plan, the Customer shall pay to the Supplier the relevant fees for such Plan as specified by the Supplier and, if such downgrade is made part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall take effect from the start of the next Renewal Period (as applicable).

4.3 Customers who have entered into an Initial Subscription Term or Renewal Period lasting for 12 months in total, will not be eligible to downgrade their plan during their Initial Subscription Term or then current Renewal Period. Where this is requested by the Customer, it will take effect at the end of the Initial Subscription Term.

4.4 It is not possible for a Customer to upgrade and downgrade their Plan within the same monthly billing cycle. Where this is requested by the Customer, it will take effect at the end of the Initial Subscription Term.

4.5 Customers who have subscribed to an annual Subscription Term on the ‘plus’, ‘pro’ or ‘enterprise’ Plan, shall
a. submit their request to upgrade their subscription via the software and, upon approval by the Supplier, pay to the Supplier the difference upfront, and if wanting to downgrade;
b. submit their request to downgrade via the software and, upon approval by the Supplier, the subscription will be downgraded at the end of the annual Subscription Term.

4.6 The Customer is able to upgrade or downgrade their subscription at anytime, in accordance with this Clause 4.

 

5. Services

5.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.

5.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

5.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.

 

6. Customer Data

6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2 The Supplier shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data and notify the Customer of any important changes to the Privacy Policy where appropriate to do so,. and at all times during the period of this Agreement, comply with the provisions and obligations imposed by the Data Protection Legislation.

6.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
a. the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this Agreement only to the extent that the Supplier ensures the reliability and security, being under an obligation of confidentiality and in accordance with the Data Protection Legislation;
b. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
c. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
d. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6.4 The Supplier shall be entitled to disclose the Customer Data to its employees, agents or officers as reasonably necessary in order to perform its obligations under the Agreement only to the extent that the Supplier ensures the reliability of such persons, being under an obligation of confidentiality.

6.5 The provision of this Clause 6 shall apply during the continuance of the Agreement and indefinitely after its termination.

 

7. Third party providers

7.1 The Customer acknowledges that the Services may enable or assist it to access the website content, or, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.

7.2 The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.

7.3 Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

 

8. Supplier’s obligations

8.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.

8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents, or where non-conformance has been caused by unsupported software or other third party services not under the Supplier’s control. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, the Supplier:
a. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, the information obtained by the Customer through the Services will meet the Customer’s requirements; and
b. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.3 The Supplier warrants that the processing of the Customer’s data is limited to, such manner that is necessary for discharging the Supplier’s obligations as arising from this Agreement, as otherwise permitted by the Customer in writing, or as otherwise required by law.

8.4 Where appropriate, without prior authorisation from the Customer, the Supplier shall not engage another Data Processor or disclose the Customer Data to any third parties, other than to the extent required under court order. Where a Data Processor is engaged to fulfil existing data processes as part of the Supplier’s legitimate interests, prior authorisation will not be required.

8.5 The Supplier warrants that it has and will maintain all necessary licences, consents, notifications and registrations, as required by the Data Protection Legislation, to process the Customer Data for the performance of its obligations under this Agreement.

8.6 During the period of this Agreement, the Supplier shall at all times comply with the provisions and obligations imposed by the Data Protection Legislation and acknowledges its role as the data processor of the Customer’s data, as defined by the Data Protection Legislation.

8.7 In pursuing its legitimate interests as granted by Data Protection Legislation, the Supplier shall do so with the undertaking in Clause 8.1 withstanding and keep the Customer informed of these legitimate interests by way of its Privacy Policy and communicate updates where appropriate.

8.8 The undertaking in Clause 6.3(d) withstanding, the Customer shall, on giving reasonable notice to the Supplier, be entitled to request that the Supplier submit to an audit or inspection of the procedures of the Supplier (as it relates to the data processed on the Customer’s behalf) for the purposes of ensuring compliance with Data Protection Legislation. This clause withstanding, audits and/or inspections shall be conducted by an agreed independent third party.

8.9 The Supplier shall assist the Customer in complying with its obligations under the Data Protection Legislation, as soon as reasonably possible if the Customer cannot retrieve Personal Data without the assistance of the Supplier and the Personal Data is processed by the Supplier on behalf of the Customer. This clause withstanding, any expected or unexpected delay shall be communicated to the Customer in writing.

8.10 The Supplier will on termination or expiry of the Agreement or at such time that the Supplier no longer requires access to the Customer Data, and at the request of the Customer, either return to the Customer or destroy the Customer Data in the Supplier’s possession.

8.11 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

 

9. Customer’s obligations

9.1 The Customer shall:
a. provide the Supplier with:
i. all necessary co-operation in relation to this Agreement; and
ii. all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

b. comply with all applicable laws and regulations with respect to its activities under this Agreement;

c. with the undertakings at Clause 5.2 and 5.3 withstanding, enable the Supplier to process the data, including Personal data, necessary to fulfil these obligations and its legitimate interests. This includes, but is not limited to, cookies, browser type and version, Internet Protocol address, operating system and platform, and activity logging and tracking;

d. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

e. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

f. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

g. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and;

h. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

i. in order to receive the Services, not take any steps to prevent or restrict the Supplier from exercising its legitimate interests as outlined in the Supplier’s Privacy Policy

 

10. Charges and payment

10.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 10 and the Agreement Details.

10.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete direct debit details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

a. its direct debit details to the Supplier, the Customer hereby authorises the Supplier to bill such direct debit:
i. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
ii. subject to clause 15.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

b. its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
i. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
ii. subject to clause 15.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 14 days after the date of such invoice.

10.3 If the Supplier has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
a. the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
b. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10.4 Customers on the ‘starter’ plan will be charged the stated rate/fee per instruction at the time of each survey purchase made through the application. Customers are required to connect a Stripe account to use the ‘starter’ plan. You must not use the WorldPay payment merchant unless otherwise agreed in writing. Your Stripe account will be debited with the total survey fee paid minus the platform fee. Fees charged are non-refundable.

10.5 All amounts and fees stated or referred to in this Agreement:
a. shall be payable in pounds sterling;
b. are, subject to clause 14.3(b) non-cancellable and non-refundable;
c. are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.

10.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon written notice to the Customer and the Agreement Details, where one has been provided, shall be deemed to have been amended accordingly.

10.7 The Customer shall be entitled to 10% off the Plan price, where the Customer pays for an annual ‘plus’ or ‘pro’ Plan upfront. Subject to the undertakings in Clause 4, these payments are non-refundable and the Customer’s statutory rights are unaffected.

 

11. Prepayments

11.1 In order for the Customer to be able to purchase additional products and services available through the Software (Add-Ons), the Customer will need to deposit funds.

11.2 The Supplier will hold such funds on the Customer’s behalf by way of security to meet any payment obligations that the Customer may incur as a result of purchasing Add-Ons.

11.3 If at the end of the Subscription Term, there is a positive balance in the Customer’s account, the Supplier will apply an administration fee to such account in accordance with the following procedure:

a. if the Customer’s does not renew their subscription with the Supplier within 50 Business Days of the end of the Subscription Term, the Supplier shall deduct a monthly administration fee of £10 from the Customer’s account balance (Administration Fee);

b. the Administration Fee calculated in accordance with Clause 11.3(a) above shall be deducted from the Customer’s account on the expiry of the 60 Business Day period referred to above and monthly thereafter at the same rate until the earlier of:
i. the Customer’s account balance reaching zero when no further Administration Fee shall be deducted at the Customer’s account will be closed; or
ii. the Customer renewing their subscription to the Service for at least a further 30 day period.

 

12. Proprietary rights

12.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

12.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

 

13. Confidentiality

13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
a. is or becomes publicly known other than through any act or omission of the receiving party;
b. was in the other party’s lawful possession before the disclosure;
c. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
d. is independently developed by the receiving party, which independent development can be shown by written evidence.

13.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, or, in the instance of the Supplier, to fulfil legitimate interests not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. This is subject to Clause 13.4.

13.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

13.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

13.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

13.7 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

13.8 The above provisions of this clause 13 shall survive termination of this Agreement, however arising.

 

14. Limitation of liability

14.1 Except as expressly and specifically provided in this Agreement:
a. the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

b. The Supplier shall have no liability for incorrectly produced quotes or payments submitted instantly or manually. It is the responsibility of the Customer to ensure all quotes an payments are correct for the respective survey or service.

c. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

d. the Services are provided to the Customer on an “as is” basis.

14.2 Nothing in this Agreement excludes the liability of the Supplier:
a. for death or personal injury caused by the Supplier’s negligence; or
b. for fraud or fraudulent misrepresentation.

14.3 Subject to clause 14.1 and clause 14.2:
a. the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs,

b. damages, charges or expenses however arising under this Agreement; and the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

 

15. Term and termination

15.1 This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods which will be equal in length to the Initial Subscription Term (each a Renewal Period), unless:

a. either party notifies the other party of termination either in writing or submitting their request through the Software before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the application Initial Subscription Term or Renewal Period; or

b. otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

15.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

a. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

b. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

c. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give e ect to the terms of this Agreement;

d. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

e. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

f. a petition is led, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

g. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

h. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

i. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

j. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

k. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(d) to clause 15.2(j) (inclusive);

l. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

m. any warranty given by the Supplier in clause 8.4 of this Agreement is found to be untrue or misleading.

15.3 On termination of this Agreement for any reason:
a. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services ;

b. each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;

c. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

d. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

 

16. Force majeure

The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

 

17. Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

18. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

19. Rights and remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

20. Severance

If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

 

21. Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

 

22. Assignment

The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or other-wise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

23. Third party rights

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

24. Notices

Any notice required to be given under this Agreement shall be in writing and shall be sent by email to the other party’s email address as set out in the Agreement Details of this Agreement.
A notice shall be deemed to have been received at 9.00am on the next Business Day after transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

25. Governing law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

 

26. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).