Terms & Conditions

The Algorithm People Limited

My Transport Planner Service

 

  • This My Transport Planner Service Agreement is a legal agreement between you (Customer or you or your) and The Algorithm People Limited T/A My Transport Planner (MTP, us, we or our) for the provision of the My Transport Planner and My Transport Planner Pro Services (Services).
  • We allow you to use the Services on the basis of this Agreement. We do not sell the Services to you. We remain the owners of the Services at all times.

 

  1. Interpretation
    • The definitions and rules of interpretation in this clause apply in this Agreement.

“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 2.2.2.

“Business Day”

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

“Change of Control”

the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

“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.

“Customer Data”

the data inputted by the Customer, Authorised Users, or MTP on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

“Data Protection Legislation”

the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); [and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party].

“Effective Date”

the date that you first register as a customer for the Services through MTP’s website .

“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 either the Customer or an Authorised User [(but not the MTP)] 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.

“Normal Business Hours”

8.00 am to 6.00 pm local UK time, each Business Day.

“Services”

the My Transport Planner and My Transport Planner Pro subscription services provided by MTP to the Customer under this Agreement via www.mytransportplanner.com or any other website or API access notified to the Customer by MTP from time to time.

“Services Credits”

the amounts purchased by the Customer from MTP at the rates as published from time to time on MTP’s website or otherwise agreed in writing with MTP and which are available to be applied in payment of the Subscription Fees for the Services provided by MTP.

“Software”

the online software applications hosted by or on behalf of MTP, and to which MTP provides the Customer with access as part of the Services.

“Subscription Fees”

the subscription fees payable by the Customer to MTP for the use of the Services, at the rates as published from time to time on MTP’s website or otherwise agreed in writing with MTP.

“Subscription Term”

the period commencing on the Effective Date and terminating on the earliest to occur of (i) any fixed term that we have agreed with you and (ii) the date which is 28 days after the date when you cease to have any Services Credits standing to the credit of your account with us.

“Support Services Policy”

MTP’s policy for providing support in relation to the Services as made available at www.mytransportplanner.com or such other website address as may be notified to the Customer from time to time.

“UK Data Protection Legislation”

all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

“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.

“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.
  • Clause and paragraph headings shall not affect the interpretation of this Agreement.
  • A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality)
  • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  • Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
  • 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.
  • 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.
  • A reference to writing or written includes e-mail.
  1. User subscriptions
    • Subject to you registering and being accepted as a customer through our website and purchasing the Service Credits and/or paying the Subscription Fees in accordance with  clause 8.1, the  restrictions set out in this clause 2 and the other terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sub licences, to permit the Authorised Users to use the Services  during the Subscription Term solely for your internal business operations.
    • In relation to the Authorised Users, you undertake that:
      • each Authorised User shall keep a secure password for his use of the Services , that such password shall be changed when prompted to do so by the system and that each Authorised User shall keep his password confidential;
      • you shall permit us or our designated auditor to audit the Services in order to establish the name and password of each Authorised User and to audit compliance with this Agreement. This right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;
      • if any of the audits referred to in clause 2.2.2 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to our other rights, you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; and
      • if any of the audits referred to in clause 2.2.2 reveal that you have underpaid Subscription Fees to us, then without prejudice to our other rights, you shall pay to us an amount equal to such underpayment as calculated in accordance with our current price list within 10 Business Days of the date of the relevant audit.
    • You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      • facilitates illegal activity;
      • depicts sexually explicit images;
      • promotes unlawful violence;
      • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      • is otherwise illegal or causes damage or injury to any person or property;

and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.

  • You shall not:
    • 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:
      • 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
      • attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
    • use the Services in a manner that breaches the fair usage policy that we publish from time to time or otherwise in a manner that attempts to avoid payment of Subscription Fees that are properly payable to us in respect of your usage of the Services;
    • access all or any part of the Services in order to build a product or service which competes with the Services ; or
    • use the Services to provide services to third parties; or
    • subject to clause 20.1, 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
    • attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or
    • introduce or permit the introduction of, any Virus or Vulnerability into our network and information systems.
  • You 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 us.
  • Without prejudice to any other rights that we might have, in the event that you are in breach of any of your obligations under this Agreement we shall have the right ,immediately and without notice, to suspend the provision of the Services to you until such time as such breach has been remedied or resolved to our satisfaction.
  • The rights provided under this clause 2 are granted to you only, and shall not be considered granted to any subsidiary or holding company of yours.
  1. Services
    • We shall, during the Subscription Term, provide the Services to you on and subject to the terms of this Agreement.
    • We shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
      • planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
      • unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give you notice in advance.
    • We will, as part of the Services, and at no additional cost to you, provide you with our standard customer support services during Normal Business Hours in accordance with the Support Services Policy in effect at the time that the Services are provided. We may amend the Support Services Policy in our sole and absolute discretion from time to time. You may purchase enhanced support services separately at our then current rates.
  2. Customer data
    • You shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
    • We shall archive, back up and retain the Customer Data for a period of 30 days after it is created, following which such Customer data may be deleted by us. .
    • In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up for which we shall remain fully liable under clause 4.9).
    • 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.
    • The parties acknowledge that:
      • if we process any personal data on your behalf when performing our obligations under this Agreement, you are the controller and we are the processor for the purposes of the Data Protection Legislation.
      • we shall agree a document that sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
      • the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and our other obligations under this Agreement.
    • Without prejudice to the generality of clause 4.4, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of this Agreement so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf.
    • Without prejudice to the generality of clause 4.4, we shall, in relation to any personal data processed in connection with the performance by us of our obligations under this Agreement:
      • process that personal data only on your documented written instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where we are relying on Applicable Laws as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
      • not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
        • you or we have provided appropriate safeguards in relation to the transfer;
        • the data subject has enforceable rights and effective legal remedies;
        • we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        • we comply with reasonable instructions notified to us in advance by you with respect to the processing of the personal data;
      • assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      • notify you without undue delay on becoming aware of a personal data breach;
      • at your written direction, delete or return personal data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
      • maintain complete and accurate records and information to demonstrate our compliance with this clause 4 and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
    • Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, 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).
    • You consent to us appointing a third party as a third-party processor of personal data under this Agreement. We confirm that we have 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 4 and which we confirm reflect and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 4.
    • Either party may, at any time 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 forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
    • You understand that the Software will store details of your usage of the Services and the Software, of the calculations which you undertake and the results of those calculations and various other data which you input, including Customer Data. You agree that we may store the results of your usage of the Services and the Software and of the calculations which you carry out and the results of those calculations and such other data as you input, including Customer Data, and use the same to improve the Services and the Software and the different products and services which we offer to our customers.  In addition, you agree that we may use the same for the purposes of research and provision of aggregated statistical data and reports for the benefit of our customers. 
  3. Third party providers

You acknowledge that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. We make 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 you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us. We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

  1. Our obligations
    • We undertake that the Services will be performed with reasonable skill and care.
    • The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents.
    • If the Services do not conform with the foregoing undertaking, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
    • We:
      • do not warrant that:
        • your use of the Services will be uninterrupted or error-free; or
        • that the Services and/or the information obtained by you through the Services will meet your requirements; or
        • that any route provided through your use of the Services will enable the route to be travelled in any specific time period (given the uncertainties of traffic and weather conditions , the speed at which a driver drives a vehicle and other factors that are not under our control);
        • the Software or the Services will be free from Vulnerabilities; or
        • the Software or Services will comply with any Heightened Cybersecurity Requirements.
      • are 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 you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    • This Agreement shall not prevent us 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.
    • We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
  2. Your obligations
    • You shall:
      • provide us with:
        • all necessary co-operation in relation to this Agreement; and
        • all necessary access to such information as may be required by us;

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

  • without affecting your other obligations under this Agreement, comply with all applicable laws and regulations with respect to your activities under this Agreement;
  • carry out all your other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
  • 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;
  • ensure that the route that is provided through your use of the Services is suitable for the vehicle that you intend will use that route, taking account of the height and width and other details of the vehicle;
  • obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
  • ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
  • be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from its systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
  1. Charges and payment
    • You shall either purchase Services Credits or pay the Subscription Fees to us for the rights to access and use the Services in accordance with this clause 8.
    • You shall on the Effective Date provide to us valid, up-to-date and complete credit card details or approved purchase order information acceptable to us and any other relevant valid, up-to-date and complete contact and billing details and, if you provide:
      • your credit card details to us, you hereby authorise us to bill such credit card on the Effective Date and on subsequent dates for the Services Credits that you have agreed to purchase from time to time and to apply such Services Credits in payment of Subscription Fees; or
      • We shall invoice you on the Effective Date for the Subscription Fees payable in respect of the agreed Subscription Term, and you shall pay each invoice by direct debit within 14 days after the date of such invoice, and we shall continue to invoice after the agreed Subscription Term on a monthly basis until cancelled in writing.
    • If we have not received payment within 30 days after the due date, and without prejudice to any of our other rights and remedies:
      • we may, without liability to you, disable your password, account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      • 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 our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    • All amounts and fees stated or referred to in this Agreement:
      • shall be payable in pounds sterling;
      • are, subject to clause 11.3.2, non-cancellable and non-refundable;
      • are exclusive of value added tax, which shall be added to the MTP’s invoice(s) at the appropriate rate.
    • We shall be entitled to increase the Subscription Fees upon 90 days’ prior notice to you.
  2. Proprietary rights
    • You acknowledge and agrees that we or our suppliers own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant you 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.
    • We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Agreement.
  3. Confidentiality
    • 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:
      • is or becomes publicly known other than through any act or omission of the receiving party;
      • was in the other party’s lawful possession before the disclosure;
      • is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      • is independently developed by the receiving party, which independent development can be shown by written evidence.
    • Subject to clause 10.4, 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 this Agreement.
    • 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.
    • 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.
    • You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute our Confidential Information.
    • We acknowledge that the Customer Data is your Confidential Information.
    • The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
  4. Limitation of liability
    • Except as expressly and specifically provided in this Agreement:
      • you assume sole responsibility for results obtained from the use of the Services by you, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction;
      • 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
      • the Services are provided to the Customer on an “as is” basis.
    • Nothing in this Agreement excludes our liability:
      • for death or personal injury caused by our negligence; or
      • for fraud or fraudulent misrepresentation.
    • Subject to clause 11.1 and clause 11.2:
      • we 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
      • our 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.
  1. Term and termination
    • This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Subscription Term, and continue on a rolling monthly basis thereafter until cancelled in writing.
    • 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 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;
      • 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 30 days after being notified in writing to do so;
      • 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 effect to the terms of this Agreement;
      • 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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
      • 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;
      • 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;
      • 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 12.2.4 to clause 12.2.7 (inclusive);
      • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
      • there is a change of control of the other party; or
    • On termination of this Agreement for any reason:
      • all access rights granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Services ;
      • 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;
      • we may destroy or otherwise dispose of any of the Customer Data in our possession in accordance with clause 4.7.3, unless we receive, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to you of the then most recent back-up of the Customer Data. We shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
      • 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.
  1. Force majeure

We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce 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 you are notified of such an event and its expected duration.

  1. Conflict

If there is an inconsistency between any of the provisions in the main body of this Agreement and the Purchase Order, the provisions in the main body of this Agreement shall prevail.

  1. Variation

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

  1. 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.

  1. 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.

  1. Severance
    • If any provision or part-provision of this 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 this Agreement.
    • If any provision or part-provision of this Agreement is deemed deleted under clause 18.1 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.
  2. Entire agreement
    • This Agreement and any documents referred to in it, constitute the entire agreement between the parties and supersede and extinguish 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.
    • Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
    • Nothing in this clause shall limit or exclude any liability for fraud.
  3. Assignment
    • You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.
    • We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this Agreement.
  4. No partnership or agency

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).

  1. 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.

  1. Notices
    • 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 set out in this Agreement, or such other address as may have been notified by that party for such purposes.
    • 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.
  2. 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.

  1. 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

 

 

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