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Software Terms and Conditions

LICENCE TERMS AND CONDITIONS FOR USE OF ELECTRONIC PORTAL DEBT-RECOVERY SERVICES

The Client’s attention is drawn in particular to the provisions of clause 12 (Askews’ limitation on liability).

 

Agreed terms:

1. Interpretation

Agreement: the agreement between Askews and the Client, for the provision of the Services in accordance with these Terms and Conditions including, without limitation, the Portal Stipulations.

Askews: means Askews Legal LLP, incorporated and registered in England and Wales with company number OC360386 whose registered office is at 5 The Quadrant, Coventry CV1 2EL.

Askews Data: any data transferred to Askews by the Client, for which Askews determines the purposes and means of processing.

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

Back-up Policy: means Askews’ back-up policy relating to the Portal, as implemented and amended by Askews (at its sole discretion) from time to time.

Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Client: means the customer, the details of which have been inserted by the relevant customer on the Portal.

Client Data: the data inputted onto the Portal by or on behalf of the Client, for the purposes of using the Services or facilitating the Client’s use of the Services. For the avoidance of doubt, Client Data does not include Askews Data.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

Domestic Law: means the laws of England and Wales.

Effective Date: the date the Client agrees these terms, as confirmed on the Portal.

Fees: the amount payable by the Client for the Services, as set out in the Portal and amended by Askews (in its sole discretion) from time to time.

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Client relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and rights in domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, whether registered or not, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

New Version: any new version of the Portal which, from time to time, is publicly marketed and offered for use by Askews in the course of its normal business, being a version which contains such significant differences from the previous versions of the Portal, as to be generally accepted in the marketplace as constituting a new product/service.

Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.

Portal: the online electronic portal at: https://debt-claims.com, supporting software and other related applications and matters, as provided by Askews to the Client as part of the Services.

Portal Stipulations: those express terms, matters and stipulations on the Portal (as amended, from time to time), including but not limiting to the ‘Terms and Conditions’ and ‘Privacy Policy’ stated therein (as amended, from time to time).

Services: the electronic debt-recovery and other related services provided by Askews to the Client under the Agreement, including access to the Portal.

Terms and Conditions: means these terms and conditions.

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

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1.1 Clause and paragraph headings shall not affect the interpretation of the Agreement.

1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 References to clauses are references to the clauses of these Terms and Conditions.

2. Licence

2.1 Subject to the terms of the Agreement, Askews grants to the Client a non-exclusive and non-transferable licence, without the right to grant sublicences, to permit the Client to use the Services, solely and exclusively for the Client’s internal business operations.

2.2 The Client shall not, at all times and in any way, 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 Askews reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

2.3 The Client shall not, in any way and at all times (whether directly or indirectly):

  • (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 the 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 Portal 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 Portal; or
  • (b) access all or any part of the Services in order to build a product or service which competes with the Services;
  • (c) subject to the terms of the Agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party;
  • (d) introduce or permit the introduction of any Virus or Vulnerability into Askews’ Portal, network or information systems.

2.4 The Client 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 Askews.

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

 

3. Services

3.1 Askews shall provide the Services to the Client on and subject to the terms of the Agreement and those terms and matters stipulated in the Portal (as amended, from time to time).

3.2 Askews shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours.

 

4. Data protection

4.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

4.2 The parties acknowledge that for the purposes of the Data Protection Legislation:

  • (a) the Client is the Controller and Askews is the Processor of all Client Data; and
  • (b) Askews is the Controller of all Askews Data. Please see Askews’ privacy policy for details of how it processes Askews Data.

4.3 In respect of Client Data, the scope, nature and purpose of processing by Askews, the duration of the processing, and the types of Personal Data and categories of Data Subject are as follows

  • Scope of processing: To enable the Client to receive debt-recovery and related services from Askews.
  • Nature of processing: Storing, analysing, transferring, copying, deleting.
  • Purpose of processing: To enable Askews to deliver the Services.
  • Duration of processing: Personal data shall be processed throughout the provision of the Services, and for a period of six months thereafter (if required).
  • Potential types of personal data: As relevant: title, first name, surname, email address, postal addresses, telephone number, mobile number and other personal data inputted by the Client on the Portal, for the purposes of obtaining the general debt-recovery facilities provided under the Services.
  • Categories of Data Subject: Employees, agents and independent contractors of the Client.

4.4 Without prejudice to the generality of clause 5.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data (including any personal data in the Askews Data and the Client Data) to Askews and/or lawful collection of the Personal Data by Askews on behalf of the Client, for the duration and purposes of the Agreement.

4.5 Without prejudice to the generality of clause 5.1, Askews shall, in relation to any Personal Data processed in connection with the performance by it of its obligations under the Agreement:

  • (a) process that Personal Data only for the provision of the Services;
  • (b) ensure that it has reasonably appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
  • (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
  • (d) not transfer any Personal Data outside of the UK unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
    • (i) the Client or Askews has provided appropriate safeguards in relation to the transfer;
    • (ii) the data subject has enforceable rights and effective legal remedies;
    • (iii) Askews complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
    • (iv) Askews complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
  • (e) reasonably assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  • (f) notify the Client of a Personal Data Breach;
  • (g) at the prior written direction of the Client, delete or return Personal Data and copies thereof, to the Client on termination of the Agreement unless required by Domestic Law to store the Personal Data.

4.6 The Client consents to Askews appointing Jotforms as a third-party processor of Personal Data under the Agreement. Askews confirms that it has entered into, or (as the case may be) will enter into, with the third-party processor, a written agreement incorporating terms which are substantially similar to those set out in this clause 4, and which Askews confirms reflects, and will continue to reflect, the requirements of the Data Protection Legislation. As between the Client and Askews, Askews shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.

4.7 Askews may, at any time and on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme.

4.8 The Client shall defend, indemnify and hold harmless Askews against all and any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s breach of this clause 4 and/or the Client’s duties under the Data Legislation.

 

5. Third party providers

The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Askews 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 Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not Askews. Askews recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Askews does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

 

6. Askews’ obligations

6.1 Askews undertakes that the Services will be performed with reasonable skill and care.

6.2 Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Askews’ instructions or the terms and matters stipulated on the Portal, or modification or alteration of the Services by any party other than Askews or Askews’ duly authorised contractors or agents. If the Services do not conform with the foregoing, Askews will, at its reasonable expense, use its reasonable endeavours to correct any such non-conformance promptly or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of clause 6.1 above.

6.3 Askews:

  • (a) does not warrant that:
    • (i) the Client’s use of the Services will be uninterrupted or error-free;
    • (ii) the Services, and/or the information obtained by the Client through the Services will meet the Client’s requirements;
    • (iii) the Portal or the Services will be free from Vulnerabilities or Viruses; or
    • (iv) the Portal or the Services will comply with any Heightened Cybersecurity Requirements;
  • (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 Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

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

6.5 Askews warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.

6.6 Askews shall follow its archiving procedures for Client Data, as set out in its Back-Up Policy. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against Askews shall be for Askews to use its reasonable endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Askews in accordance with the archiving procedure described in its Back-Up Policy. Askews shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Askews to perform services related to Client Data maintenance and back-up for which it shall remain fully liable.

 

7. Client’s obligations

7.1 The Client shall:

  • (a) provide Askews with full and complete:
    • (i) co-operation in relation to the Agreement; and
    • (ii) access to such information as may be required by Askews, in order to provide the Services, including but not limited to any Askews Data and Client Data, security access information and configuration services;
  • (b) without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
  • (c) carry out all other Client responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Askews may adjust any agreed timetable or delivery schedule as reasonably necessary;
  • (d) obtain and shall maintain all necessary licences, consents, and permissions necessary for Askews, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services; and
  • (e) be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Askews’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

7.2 The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.

7.3 The Client acknowledges and agrees that:

  • (a) Askews may include the Client’s name or the Client’s marks in a list of Askews’ customers, in any medium or in any link from the Portal to the Client’s website; and
  • (b) Askews may refer to the Client, orally or in writing, as a customer of the Services for Askews’ promotional, marketing and financial reporting purposes.

 

8. Fees and payment

8.1 The Client shall pay the Fees to Askews, strictly in accordance with the Portal Stipulations.

8.2 If Askews has not received any Fee payment within 30 days after its due date, and without prejudice to any other rights and remedies of Askews:

  • (a) Askews may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and Askews 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 4% over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.3 All amounts and Fees stated or referred to in the Agreement, Portal or otherwise:

  • (a) shall be payable in pounds sterling;
  • (b) are, subject to clause 12.4(b), non-cancellable and non-refundable; and
  • (c) are exclusive of value added tax, which shall be added to Askews’ invoice(s) at the appropriate rate.

 

9. Proprietary rights

9.1 The Client acknowledges and agrees that Askews and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, the Agreement does not grant the Client any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services.

 

10. Confidentiality

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the 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.

10.2 Subject to clause 10.4 below, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.

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

10.4 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Askews’ Confidential Information.

10.6 Askews acknowledges that the Client Data is the Confidential Information of the Client.

10.7 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

10.8 The above provisions of this clause 10 shall survive termination of the Agreement, however arising.

 

11. Indemnity

11.1 The Client shall defend, indemnify and hold harmless, Askews against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs, wasted costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services.

 

12. Limitation of liability

12.1 This clause 12 sets out the entire financial liability of Askews (including any liability for the acts or omissions of its employees, representatives, agents and sub-contractors) to the Client:

  • (a) arising under or in connection with the Agreement;
  • (b) in respect of any use made by the Client of the Services or any part of them; and
  • (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

12.2 Except as expressly and specifically provided in the Agreement:

  • (a) the Client assumes sole responsibility for results obtained from the use of the Services by the Client, and for conclusions drawn from such use. Askews shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Askews by the Client in connection with the Services, or any actions taken by Askews at the Client’s direction;
  • (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
  • (c) the Services are provided to the Client on an “as is” basis.
  • 12.3 Nothing in the Agreement excludes the liability of Askews:
  • (a) for death or personal injury caused by Askews’ negligence; or
  • (b) for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.1 and clause 12.3:

  • (a) Askews shall not, in any circumstances, be liable for any losses, damages or otherwise, which may be suffered by the Client (or any person claiming under or through the Client), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise 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, loss of anticipated savings, wasted expenditure, loss or corruption of data and/or similar losses, or pure economic loss, or for any special damages (even if Askews was aware of the circumstances in which such special damage could arise), indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
  • (b) Askews’ 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 the Agreement shall be limited to the total Fees paid during the 12 (twelve) months immediately preceding the date on which the claim arose.

 

13. Term and termination

13.1 The Agreement shall, unless otherwise terminated in accordance with the terms of this clause 13, commence on the Effective Date and shall continue unless:

  • (a) either party provides at least 90 (ninety) days’ written notice to terminate to the other party; or
  • (b) otherwise terminated in accordance with the provisions of the Agreement.

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

  • (a) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 (fourteen) days after being notified in writing to make such payment;
  • (b) the other party commits a material breach of any other term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 (fourteen) days after being notified in writing to do so;
  • (c) 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;
  • (d) 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;
  • (e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  • (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • (g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
  • (h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) 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 (fourteen) 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 13.2(c) to clause 13.2(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;
  • (m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy; or
  • (n) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

13.3 On termination of the Agreement for any reason:

  • (a) all licences granted under the Agreement shall immediately terminate and the Client 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) Askews may destroy or otherwise dispose of any of the Client Data in its possession unless Askews receives, no later than 10 (ten) days after the effective date of the termination of the Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Askews shall use its reasonable endeavours to deliver the back-up to the Client within 30 (thirty) days of its receipt of such a written request, provided that the Client 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 Client shall pay all reasonable expenses incurred by Askews in returning or disposing of Client Data;
  • (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;
  • (e) the following provisions, together with all of the parties’ rights and obligations thereunder, shall survive termination and remain in full force and effect: clauses – 1; 2; 4; 7; 8; 9; 10; 11; 12; 13; 15; 16; 17; 18; 19; 20; 24; 25; and 26.

 

14. Force majeure

Askews shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the 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 Askews 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, epidemic or pandemic, or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.

 

15. Conflict

In the event of a conflict between these Terms and Conditions and the Portal Stipulations, the Portal Stipulations shall have precedence and these Terms and Conditions shall be construed accordingly.

 

16. Variation

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

 

17. Waiver

No failure or delay by a party to exercise any right or remedy provided under the 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.

18. Rights and remedies

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

 

19. Severance

19.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.

19.2 If any provision or part-provision of the Agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

20. Entire agreement

20.1 The 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.

20.2 Each party acknowledges that in entering into the 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 expressly set out in the Agreement.

20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

20.4 Nothing in this clause 20 shall limit or exclude any liability for fraud.

 

21. Assignment

21.1 The Client shall not, without the prior written consent of Askews, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

21.2 Askews may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

 

22. No partnership or agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

23. Third party rights

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

 

24. Notices

24.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by email, to the email addresses stipulated by the parties in the Portal.

24.2 A notice delivered by email shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00am on the first business day following delivery).

 

25. Governing law

The 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 the Agreement or its subject matter or formation (including non-contractual disputes or claims).

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