Terms and conditions

To proceed, please confirm your acceptance of these terms and conditions using the checkbox at the bottom.

PLEASE READ CAREFULLY BEFORE SUBSCRIBING TO THE SERVICES FROM THIS WEBSITE:

This agreement (Agreement) is a legal agreement between you (Customer or you) and Altuity Solutions Limited of Saville Court, Saville Place, Bristol, BS8 4EJ (Supplier, us or we) for access to and use of the AltoSites portal and Software via https://altosites.altuity.com or any other website notified to the Customer by the Supplier from time to time, (Services).

IMPORTANT NOTICE:

BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU. THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 13.

WHERE AN INDIVIDUAL ACCEPTS THIS AGREEMENT FOR AND ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT INDIVIDUAL HEREBY WARRANTS THAT HE IS DULY AUTHORISED TO DO SO.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU WILL NOT BE ABLE TO ACCESS OR USE THE SERVICES AND SHOULD CONTACT THE SUPPLIER TO DISCUSS CANCELLATION OF YOUR SUBSCRIPTION.

You should print a copy of this Agreement for future reference.

Agreed Terms

Interpretation

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

Authorised Sites: those properties, buildings or other areas of land for which use of the Services is authorised in accordance with the Order Form.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in clause .

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

Customer Content: the data inputted by the Customer or, Authorised Users in the course of using the Services excluding the Customer Data.

Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of subscribing to the Services or facilitating the Customer’s access to the Services excluding Customer Content.

Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.

Effective Date: the commencement of the Initial Subscription Term as set out in the Order Form

Initial Subscription Term: the initial term of this Agreement as set out in the Order Form

Normal Business Hours: [9am to 5pm] local UK time, each Business Day.

Order Form: the documentation whether physical or on-line confirming an order between the Customer and Supplier which sets out the requested Service, the Subscription Term, payment schedule and payment due dates as agreed between the parties

Renewal Period: the period described in clause .

Services: the subscription services provided by the Supplier to the Customer under this Agreement via www.altosites.com or any other website 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 Order Form.

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

Support Services Policy: the Supplier's policy for providing support in relation to the Services as made available at www.altuity.com or such other website address as may be notified to the Customer from time to time.

UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause  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.

User subscriptions

1.2 Subject to the Customer purchasing the User Subscriptions in accordance with clause  and clause , the restrictions set out in this clause  and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term for the purposes of permitting the Customer to manage its property assets, limited to the Authorised Sites. 

1.3 In relation to the Authorised Users, the Customer undertakes that: 

1.3.1 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; 

1.3.2 it will not allow or suffer 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; 

1.3.3 each Authorised User shall keep a secure password for his use of the Services, and that each Authorised User shall keep his password confidential; 

1.3.4 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 no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; 

1.3.5 if any of the audits referred to in clause  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 

1.3.6 if any of the audits referred to in clause  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 Order Form within 30 Business Days of the date of the relevant audit. 

1.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: 

1.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; 

1.4.2 facilitates illegal activity; 

1.4.3 depicts sexually explicit images; 

1.4.4 promotes unlawful violence; 

1.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or 

1.4.6 in a manner that 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.

1.5 The Customer shall not: 

1.5.1 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: 

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable)] in any form or media or by any means; or 

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or 

1.5.2 access all or any part of the Services in order to build a product or service which competes with the Services; or 

1.5.3 use the Services to provide services to third parties; or 

1.5.4 subject to clause , 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 

1.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause ; and 

1.6 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. 

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

Additional user subscriptions

1.8 Subject to clause  and clause , the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and/or add additional Authorised Sites to the User Subscriptions, and the Supplier shall grant access to the Services to such additional Authorised Users and/or Authorised Sites in accordance with the provisions of this Agreement. 

1.9 If the Customer wishes to purchase additional User Subscriptions and/or add additional Authorised Sites to the User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and/or additional Authorised Sites and respond to the Customer with approval or rejection of the request such approval not to be unreasonably withheld. 

1.10 If the Supplier approves the Customer’s request to purchase additional User Subscriptions and/or add additional Authorised Sites to the User Subscriptions, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Order Form and, if such additional User Subscriptions and/or additional Authorised Sites are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable). 

Services

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

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

1.12.1 planned maintenance carried out on 7 days’ notice to the Customer; and 

1.12.2 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. 

1.13 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 in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided.  The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.  The Customer may purchase enhanced support services separately at the Supplier’s then current rates. 

Customer Data

1.14 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available at www.altuity.com or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time.  In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party. 

1.15 The Supplier shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data available at www.altuity or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion. 

Customer Content

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

1.17 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this clause , Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK. 

1.18 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller of Customer Content and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject. 

1.19 Without prejudice to the generality of clause , the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement. 

1.20 Without prejudice to the generality of clause , the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement: 

1.20.1 process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer; 

1.20.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, 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);  

1.20.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and 

1.20.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: 

(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer; 

(b) the data subject has enforceable rights and effective legal remedies; 

(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and 

(d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data; 

1.20.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; 

1.20.6 notify the Customer without undue delay on becoming aware of a Personal Data breach; 

1.20.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and 

1.20.8 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for and contribute toaudits by the Customer or the Customer's designated auditor. 

1.21 The Customer consents to the Supplier appointing cloud hosting providers in the EEA as a third-party processor of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause . As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause . 

Third party providers

1.22 The Customer 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/or that the Services may be accessed on mobile devices via third-party software and that it does so solely at its own risk.  The Supplier makes no representation 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 and/or software, or any transactions completed, and any contract entered into by the Customer, with any such third party.  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 relevant terms and conditions and privacy policy prior to using the relevant third-party website and/or software.  The Supplier does not endorse or approve any third-party website nor any third-party software nor the content of any of the third-party website made available via the Services.   

Supplier's obligations

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

1.24 The undertaking at clause  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. If the Services do not conform with the foregoing undertaking, 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 .  Notwithstanding the foregoing, the Supplier: 

1.24.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and 

1.24.2 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. 

1.25 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. 

1.26 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement. 

Customer's obligations

1.27 The Customer shall: 

1.27.1 provide the Supplier with: 

(a) all necessary co-operation in relation to this Agreement; and 

(b) 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;

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

1.27.3 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; 

1.27.4 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; 

1.27.5 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; 

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

1.27.7 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. 

Charges and payment

1.28 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause  and the Order Form. 

1.29 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card 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: 

1.29.1 its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card: 

(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and 

(b) subject to clause , on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; 

1.29.2 its approved purchase order information to the Supplier, the Supplier shall invoice the Customer: 

(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and 

(b) subject to clause , 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 30 days after the date of such invoice.

1.30 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier: 

1.30.1 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 

1.30.2 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. 

1.31 All amounts and fees stated or referred to in this Agreement: 

1.31.1 shall be payable in pounds sterling; 

1.31.2 are, subject to clause , non-cancellable and non-refundable; 

1.31.3 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate. 

1.32 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Order Form, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out in the Order Form. 

1.33 The Supplier reserves the right to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause  and/or the excess storage fees payable pursuant to clause  at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly. 

Proprietary rights

1.34 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, or in, 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. 

1.35 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. 

Confidentiality

1.36 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: 

1.36.1 is or becomes publicly known other than through any act or omission of the receiving party; 

1.36.2 was in the other party's lawful possession before the disclosure; 

1.36.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; 

1.36.4         is independently developed by the receiving party, which independent development can be shown by written evidence; or 

1.36.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. 

1.37 Each party shall hold the other's Confidential Information in confidence and, unless required by law, 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. 

1.38 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. 

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

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

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

1.42 This clause  shall survive termination of this Agreement, however arising. 

1.43 No party shall make, or permit any person to make, any public announcement concerning this 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. 

Indemnity

1.44 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, including any claim that anything done by the Supplier in the course of providing the Services infringes third party intellectual property or other rights in the Customer Data, provided that: 

1.44.1 the Customer is given prompt notice of any such claim; 

1.44.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and 

1.44.3 the Customer is given sole authority to defend or settle the claim. 

1.45 Where the Customer is the party first notified of any such claim, it shall notify the Supplier in writing within 3 Business Days. 

1.46 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: 

1.46.1 the Supplier is given prompt notice of any such claim; 

1.46.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and 

1.46.3 the Supplier is given sole authority to defend or settle the claim. 

1.47 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.  

1.48 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: 

1.48.1 a modification of the Services by anyone other than the Supplier; or 

1.48.2 the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or 

1.48.3 the Customer's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority. 

1.49 The foregoing and clause  states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality. 

Limitation of liability

1.50 This clause  sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer: 

1.50.1 arising under or in connection with this Agreement; 

1.50.2 in respect of any use made by the Customer of the Services or any part of them; and 

1.50.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement. 

1.51 Except as expressly and specifically provided in this Agreement: 

1.51.1 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; 

1.51.2 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 

1.51.3 the Services are provided to the Customer on an "as is" basis. 

1.52 Nothing in this Agreement excludes the liability of the Supplier: 

1.52.1 for death or personal injury caused by the Supplier's negligence; or 

1.52.2 for fraud or fraudulent misrepresentation.  

1.53 Subject to clause  and clause : 

1.53.1 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, damages, charges or expenses however arising under this Agreement; and 

1.53.2 the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause ), 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]. 

Term and termination

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

1.54.1 either party notifies the other party of termination, in writing, at least 45 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or 

1.54.2 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.

1.55 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 the other party’s financial position is such that either the other party, its directors, shareholders or creditors take or are entitled to take steps to institute formal insolvency proceedings with respect to the other party of a type provided for by the Insolvency Act 1986 (or any similar or analogous legislation, whether under English law or otherwise), including without limitation administration, liquidation, administrative receivership, receivership, voluntary arrangement, scheme of arrangement or bankruptcy, or if the other party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. 

1.56 On termination of this Agreement for any reason: 

1.56.1 all licences granted under this Agreement shall immediately terminate;  

1.56.2 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; 

1.56.3 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 

1.56.4 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. 

Force majeure

1.57 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. 

Variation

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

Waiver

1.59 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. 

Rights and remedies

1.60 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. 

Severance

1.61 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. 

1.62 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. 

Entire agreement

1.63 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. 

1.64 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. 

Assignment

1.65 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. 

1.66 The Supplier 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 this Agreement. 

No partnership or agency

1.67 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 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). 

Third party rights

1.68 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. 

Notices

1.69 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Order Form, or such other address as may have been notified by that party for such purposes, or sent by fax or email to the other party's fax number or email address as set out in the Order Form. 

1.70 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). 

Governing law

1.71 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. 

Jurisdiction

1.72 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). 

Dispute Resolution

1.73 If any dispute arises in connection with this Agreement, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the dispute requesting a mediation. A copy of the request should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. 

Schedule 1

Processing, Personal Data and Data Subjects

1. Processing by the Supplier 

1.1 Subject matter: personal data recorded by the Customer/Authorised Users relating to Authorised Site-specific incidents, eg accidents 

1.2 Nature: Authorised Site -related information

1.3 Purpose of processing: to record information relating to an Authorised Site

1.4 Duration of the processing: for the duration of the Subscription Term 

2. Types of personal data: names; contact details 

3. Categories of data subject: may include points of contact for a particular Authorised Site; individuals injured by an accident at an Authorised Site