Terms and Conditions of Business – Vscene

AJENTA TERMS AND CONDITIONS OF BUSINESS

All Orders are accepted by Ajenta Limited (“Ajenta”) subject to these terms which shall override any other terms or conditions which the customer purchasing services or goods from Ajenta (the “Customer”) attempts to incorporate either through negotiation or as a result of an Order (unless such terms are expressly agreed by an authorised signatory of Ajenta in writing).

BACKGROUND TO THESE TERMS AND CONDITIONS

  • a. Ajenta has certain software applications, platforms and hardware which it makes available to subscribers for the purpose of video-conferencing, collaboration and scheduling thereof. The Customer wishes to use Ajenta’s service in its business operations;

  • b. Ajenta has agreed to provide and the Customer has agreed to take and pay for Ajenta’s Services subject to the terms and conditions of this Contract; and

  • c. The Customer and Ajenta refer to the Policies that are referred to in this Contract.

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Contract:-

“Authorised Users” those students, guests, employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation;
“Business Day” a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for normal over the counter business;
“Conditions” the terms and conditions set out in this document as amended from time to time;
 “Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.6 or clause 12.7;
“Contract” the contract between Ajenta and the Customer for the sale and purchase of the Services and / or the Goods in accordance with these Conditions and in particular clause 2 hereof;
“Customer Data” the data inputted by the Customer, Authorised Users, or Ajenta on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;
“Documentation” the documentation made available to the Customer by Ajenta online as notified by Ajenta to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;
“Effective Date”  the date of the Order;
“EULA” means the end-user licencing agreement in relation to the Services that is to be entered into by the Authorised Users prior to accessing the Services;
“Goods” means the video-conferencing system hardware or materials (or any part of them) set out in the Order;
“Normal Business  Hours” 9am – 5pm local UK time, each Business Day;
“Order” the Customer’s order for the Services and / or Goods or contract for the supply of goods over a period of time or continued ordering of Services and / or Goods on an on-going basis, as set out in the Customer’s purchase order form, the Customer’s written acceptance of Ajenta’s quotation, as the case may be;
“Policies” means the policies of Ajenta (currently this Terms & Conditions of Business, the Service and Support Level Agreement, the Privacy Policy, the Acceptable Use Policy, the End User License Agreement and the Data Protection Policy) as notified to the Customer as part of this Contract and as delineated from time to time;
“Services” the subscription video-conferencing services, physical hardware and support services provided (or supplied) by Ajenta to the Customer under this Contract as may be updated and notified to the Customer by Ajenta from time to time;
“Specification” any specification for the Goods, that is agreed in writing in the Order;
“Software” the online software and / or applications provided by Ajenta as part of the Services;
“Subscription Fees” the subscription fees payable by the Customer (for the Services) to Ajenta for the User Subscriptions, as set out in the Order for Services;
“Subscription Term” has the meaning given in clause 15.1 (being the Subscription Term together with any subsequent renewal periods as may be agreed in writing);
“Support Services Policy” Ajenta’s policy for providing support in relation to the Services as made available to the Customer at the time of the Order or from time to time thereafter;
“User Subscriptions” the user subscriptions or host / administrator accounts purchased by the Customer pursuant to clause 10.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Contract; and
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 In these Conditions, the following rules apply:

  • a. clause and paragraph headings shall not affect the interpretation of these Conditions;

  • b. a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality);

  • c. a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

  • d. unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

  • e. unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;

  • f. a reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract;

  • g. a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision;

  • h. a reference to writing or written includes e-mail.

2. Basis of contract

  • 2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Conditions seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

  • 2.2 The Order constitutes an offer by the Customer to purchase the Services and / or Goods in accordance with these Conditions and the Policies. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate. The Order will be deemed accepted by Ajenta when it starts to supply the Services or despatches the Goods as relevant.

  • 2.3 The Contract constitutes the entire agreement between the parties.

  • 2.4 The Customer acknowledges that it has not relied on any statement, promise, guarantee or representation as to quality or fitness for purpose made or given by or on behalf of the Seller about the Goods (or their life or use) and / or Services which is not set out in the Contract. The Customer waives any rights or remedies that it may have in respect of any warranty, representation, consent or undertaking that is implied by law.

3. Services – User subscriptions

  • 3.1 Subject to the Customer purchasing (or utilising where any such service is provided at no cost to the Customer) the User Subscriptions in accordance with the Order, clause 4.2 and clause 10.1, the restrictions set out in this clause 2 and the other terms and conditions of this Contract, Ajenta hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

  • 3.2 In relation to the Authorised Users, the Customer undertakes that:

    • a. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

    • b. 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 and/or Documentation;

    • c. each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential;

    • d. it shall permit Ajenta to audit the Services in order to establish the name and password of each Authorised User. This right shall be exercised in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

    • e. each of the Authorised Users shall enter into a EULA with Ajenta (noting that this must be complied with in order for the Authorised User to access the Services to be provided);

    • f. if any of the audits referred to in clause 3.2(e) reveal that the Customer has underpaid Subscription Fees to Ajenta, then without prejudice to Ajenta’s other rights, the Customer shall pay to Ajenta an amount equal to such underpayment as calculated in accordance with the prices set out by Ajenta from time to time and such payment shall be made within 10 Business Days of the date of the relevant audit.

  • 3.3 The Customer (and the Customer shall ensure that Authorised Users) shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

    • a. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

    • b. facilitates illegal activity;

    • c. depicts sexually explicit images;

    • d. promotes unlawful violence;

    • e. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

    • f. is otherwise illegal or causes damage or injury to any person or property; and Ajenta 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.

  • 3.4 The Customer shall not:

    • a. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Contract:

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

      • ii. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

    • b. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

    • c. use the Services and/or Documentation to provide services to third parties; or

    • d. subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

    • e. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation;

  • 3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Ajenta.

  • 3.6 The rights provided are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

4. Additional user subscriptions

  • 4.1 Subject to clause 4.2, 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 and Ajenta shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Contract.

  • 4.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Ajenta in writing. Ajenta shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (noting that the Customer may need to upgrade and pay additional costs). If Ajenta approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Ajenta’s invoice, pay to Ajenta the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Subscription Term, such fees shall be pro rata from the date of activation by Ajenta for the remainder of the Subscription Term.

5. Services

  • 5.1 Ajenta shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Contract.

  • 5.2 Ajenta shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned or urgently required maintenance.

  • 5.3 Ajenta will, as part of the Services and at no additional cost to the Customer (except as set out in the Order), provide the Customer with Ajenta’s standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at Ajenta’s on a case by case basis at the then current rates or an agreed rate for such service (being £100 per hour per Ajenta operative plus VAT and any outlays at the date of this Contract).

6. Customer data – Data Protection

  • 6.1 The Customer shall own all right, title and interest in and to all of the Customer Data 3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Ajenta. 3.6 The rights provided are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer. and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data

  • 6.2 Ajenta shall follow its archiving procedures for Customer Data as set out 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 Ajenta to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Ajenta (if any) in accordance with the archiving procedure. Ajenta 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 Ajenta to perform services related to Customer Data maintenance and back-up).

  • 6.3 If Ajenta processes any personal data on the Customer’s behalf when performing its obligations under this Contract, the parties record their intention that the Customer shall be the data controller and Ajenta shall be a data processor and in any such case:

    • a. the Customer acknowledges and agrees that in exceptional circumstances, personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located, in order to carry out the Services and Ajenta’s other obligations under this Contract, in accordance with the terms of the Ajenta data protection policies;

    • b. the Customer is entitled to transfer the relevant personal data to Ajenta so that Ajenta may lawfully use, process and transfer the personal data in accordance with this Contract on the Customer’s behalf;

    • c. the Customer shall ensure that the relevant third parties or Authorised Users (as the case may be) have been informed of and have given their consent to, such use, processing and transfer as required by all applicable data protection legislation;

    • d. Ajenta shall process the personal data only in accordance with the terms of this Contract and any lawful instructions reasonably given by the Customer from time to time; and

    • e. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

7. Third party providers

The Customer acknowledges that the Services may enable or assist them 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.

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

Ajenta recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Ajenta does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services

8. Ajenta’s obligations

  • 8.1 Ajenta undertakes that the Services will be provided substantially in accordance with the Documentation and with reasonable skill and care.

  • 8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Ajenta’s instructions, or modification or alteration of the Services by any party other than Ajenta or Ajenta’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Ajenta will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, Ajenta:

    • a. does not warrant that the Customer’s use of the Services will be uninterrupted or error- free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

    • b. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

  • 8.3 This Contract shall not prevent Ajenta 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 Contract.

  • 8.4 Ajenta warrants that it has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under this Contract.

  • 8.5 Ajenta will not monitor or review conferences or recordings as a matter of course, but may do so where it has been invited to do so by the Customer or has reason to believe either that there is a fault or problem relating to the recording functionality (or a particular conference or recording thereof), or that the recording functionality has been misused.

  • 8.6 Where Ajenta has been informed, or otherwise has reason to believe, that the use of the recording functionality breaches the terms of this agreement, any legal requirements, or the rights of any third party, it may immediately suspend access to the recording or remove it from the Services. Ajenta will inform the Customer as soon as possible of any such suspension of access or removal of material.

  • 8.7 In respect of any personal data that may be contained within recordings, Ajenta will act as data processor on behalf of the Customer. Ajenta will only process such personal data in accordance with the Policies and as otherwise directed by the Customer and comply with equivalent obligations to those imposed on the Customer by the seventh principle of the Data Protection Act 1998. The Customer acknowledges that it is its own responsibility to ensure that all participants have provided informed consent to the processing of their personal data contained in any recordings or streams by Ajenta.

  • 8.8 The Customer will ensure that it only authorises certain Authorised Users entitles to make recordings and that it will inform and train said Authorised Users in the recording functionality and the Customer’s responsibilities in terms of this agreement.

  • 8.9 The Customer acknowledges that Ajenta may need to carry out planned maintenance, or, in the event that emergency maintenance requires to be carried out to alter a part of the Vscene Infrastructure. In this event, Ajenta shall:-

    • a. only carry out planned maintenance outwith Business Hours and with notice in writing to the Customer and on a case by case basis to such planned maintenance being carried out at other times;

    • b. in the event of planned maintenance, give Customer no less than thirty (30) days’ notice of when it would wish to carry out planned maintenance;

    • c. save where to do so would put it in breach of its obligations to comply with paragraph d. below or its obligations to achieve the Service Levels, use reasonable endeavours to carry out any emergency maintenance outside of Business Hours;

    • d. treat the immediate resolution of the issue resulting in the need for emergency maintenance as its first priority and in this respect:-

      • i. where the emergency maintenance relates to the complete loss of the Vscene Infrastructure, Ajenta shall immediately seek to resolve the fault;

      • ii. in all circumstances, minimise the impact of the interruption, restriction or suspension on Customer and Authorised Users;

9. Customer’s obligations

The Customer shall:

  • a.  provide Ajenta with:

    • i. all necessary co-operation in relation to this Contract; and

    • ii. all necessary access to such information as may be required by Ajenta; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

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

  • c. carry out all other Customer responsibilities set out in this Contract 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, Ajenta may adjust any agreed timetable or delivery schedule as reasonably necessary;

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

  • e. obtain and shall maintain all necessary licences, consents and permissions necessary for Ajenta, its contractors and agents to perform their obligations under this Contract, including without limitation the Services;

  • f. ensure that its network and system comply with the relevant specifications provided by Ajenta from time to time;

  • g. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Ajenta’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;

  • h. ensure that in the event of the “recording” functionality being enabled by the Customer ensure that all Authorised Users (i.e. those permitted by it to use the Services) give relevant consent to the recording taking place and that it complies with the Policies in respect of such recording. In the case of recordings being made involving children extra caution should be taken and it should be ensured the child ii. in all circumstances, minimise the impact of the interruption, restriction or suspension on Customer and Authorised Users; clearly understands the nature of the recording or that parental / guardian consent is clearly given;

  • i. permit Ajenta to carry out audits of and/or otherwise monitor, the Customer’s procedures for the obtaining of informed consents from conference participators to the recording of a video-conference. If, in its reasonable opinion, Ajenta determines that such procedures are not satisfactory, Ajenta will notify the Customer in writing. Within 30 days of such notice the Customer shall amend its procedures to the reasonable satisfaction of Ajenta. If the Customer fails to do so, Ajenta may terminate this Agreement in its sole discretion;

  • j. expressly acknowledge that all recordings of its Authorised Users may make using the recording functionality remain the property of the Customer (as between Ajenta and the Customer). The Customer also acknowledges that it remains the data controller, responsible for compliance with the Data Protection Act 1998 (or successor legislation), in respect of any personal data that may be contained in its recordings. The Customer grants Ajenta the right to create, store and where requested by the Customer, stream the recording, for the storage period; and to otherwise perform the recording functionality, as instructed by its Authorised Users; and

  • k. ensure that Ajenta will not infringe any third party intellectual property, or breach any data protection legislation or rights of privacy of any individual; in particular the Customer warrants that informed consent to recording and/or streaming has been obtained for all participants in recorded conferences;

  • l. the making and reuse of the recording are lawful and do not infringe the rights of any participant or any other third party. Note that any participant in a conference may, under the laws of Scotland, possess intellectual property rights in their contribution to the conference. These rights, as well as rights under data protection and privacy law, are likely to apply separately to the making and the viewing of a recording and to the participant’s presence in the original conference. Legal advice may be necessary to determine the appropriate form of consent and rights clearance for any particular conference or recording, especially where the recording of minors is involved and the Customer is responsible for taking such advice.

10. Charges and payment

  • 10.1 The Customer shall pay the Subscription Fees to Ajenta for the User Subscriptions in accordance with this clause 10 and the Order and the support fees in accordance with clause 5.3.

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

    • a. provides its bank details to Ajenta, the Customer hereby authorises Ajenta to bill such on the Effective Date for the Subscription Fees payable in respect of the Subscription Term (payable at such dates as specified in the Order specification);

    • b. provides its approved purchase order information to Ajenta, Ajenta shall invoice the Customer on the Effective Date for the Subscription Fees payable in respect of the Subscription Term.

  • 10.3 If Ajenta has not received payment within 30 days after the due date and without prejudice to any other rights and remedies of Ajenta:

    • i. may, without liability to Ajenta or the Customer, disable the Customer’s password, account and access to all or part of the Services and Ajenta shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

    • ii. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of the Clydesdale Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

  • 10.4 All amounts and fees stated or referred to in this Contract:

    • a. shall be payable in pounds sterling (unless expressly stated in the Order);

    • b. are, subject to clause 14.3(b), non-cancellable and non-refundable;

    • c. are exclusive of value added tax, which shall be added to Ajenta’s invoice(s) at the appropriate rate.

11. Proprietary rights

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

  • 11.2 Ajenta confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under and in accordance with, the terms of this Contract.

12. Confidentiality

  • 12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Contract. 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.

  • 12.2 Subject to clause 12.4, 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 Contract.

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

  • 12.4 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 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

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

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

  • 12.7 Ajenta acknowledges that the Customer Data is the Confidential Information of the Customer.

  • 12.8 No party, without the prior agreement of Ajenta shall make, or permit any person to make, any public announcement concerning this Contract 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.

  • 12.9 The above provisions of this clause 12 shall survive termination of this Contract, however arising.

13. Indemnity

  • 13.1 The Customer shall defend, indemnify and hold harmless Ajenta 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 and/ or Documentation, provided that:

    • a. the Customer is given prompt notice of any such claim;

    • b. Ajenta provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

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

  • 13.2 Ajenta shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation 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:

    • a. Ajenta is given prompt notice of any such claim;

    • b. the Customer provides reasonable co-operation to Ajenta in the defence and settlement of such claim, at Ajenta’s expense; and

    • c. Ajenta is given sole authority to defend or settle the claim.

  • 13.3 In the defence or settlement of any claim, Ajenta 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 Contract 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.

  • 13.4 In no event shall Ajenta, its employees, agents or sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

    • a. a modification of the Services or Documentation by anyone other than Ajenta; or

    • b. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Ajenta; or

    • c. the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Ajenta or any appropriate authority.

  • 13.5 The foregoing and clause 14.3(b) states the Customer’s sole and exclusive rights and remedies and Ajenta’s (including Ajenta’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14. Limitation of liability

  • 14.1 Except as expressly and specifically provided in this Contract:

    • a. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer and for conclusions drawn from such use. Ajenta shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Ajenta by the Customer in connection with the Services, or any actions taken by Ajenta at the Customer’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 this Contract; and

    • c. the Services and the Documentation are provided to the Customer on an “as is” basis.

  • 14.2 Nothing in this Contract excludes the liability of Ajenta: infringing or, if such remedies are not reasonably available, terminate this Contract 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. 13.4 In no event shall Ajenta, its employees, agents or sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

    • a. for death or personal injury caused by Ajenta’s negligence; or

    • b. for fraud or fraudulent misrepresentation.

  • 14.3 Subject to clause 14.1 and clause 14.2:

    • a. Ajenta shall not be liable whether in delict (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 Contract; and

    • b. Ajenta’s total aggregate liability in contract (including in respect of the indemnity at clause 13.2), delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the total Subscription Fees paid for the User Subscriptions during the 30 day period immediately preceding the date on which the claim arose

15. Term and termination

  • 15.1 This Contract shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Subscription Term and, thereafter, this Contract shall be automatically renewed, unless:

    • a. either party notifies the other party of termination, in writing, at least 60 days before the end of the Subscription Term, in which case this Contract shall terminate upon the expiry of the applicable Subscription Term; or

    • b. otherwise terminated in accordance with the provisions of this Contract.

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

    • a. the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

    • b. the other party commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;

    • c. the other party repeatedly breaches any of the terms of this Contract 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 Contract;

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

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

    • f. a petition is 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;

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

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

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

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

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

  • 15.3 On termination of this Contract for any reason:

    • a. all licences granted under this Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

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

    • c. Ajenta may destroy or otherwise dispose of any of the Customer Data in its possession unless Ajenta receives, no later than ten days after the effective date of the termination of this Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Ajenta 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); and

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

16. Provisions relating to Goods (where applicable)

  • 16.1 The Goods are described in the Specification. Ajenta reserves the right in its absolute discretion:-

    • a. to amend the Specification if required by or to comply with any applicable statutory or regulatory requirements;

    • b. to supply Goods which are in its opinion equivalent to those offered or contracted to be sold to the Customer.

  • 16.2 For delivery of any Goods to be supplied:-

    • a. Ajenta shall deliver the Goods to the location set out in the Order or such other location as the parties may agree prior to delivery; or

    • b. the Customer shall collect the Goods from the Ajenta’s premises or such other location as may be agreed. (the locations referred to in this clause shall be referred to herein as the “Delivery Location”)

  • 16.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. The Customer shall inspect the Goods immediately upon delivery and shall within seven Business Days of such delivery (time being of the essence) give notice in writing to Ajenta of any matter or thing by reason whereof it alleges that the Goods are not in accordance with the Contract.

  • 16.4 Any dates quoted for delivery are approximate only and the time of delivery is not of the essence.

  • 16.5 No Goods are supplied on a sale or return basis (unless expressly agreed to in writing by Ajenta).

  • 16.6 Ajenta warrants that on delivery, the Goods shall conform to the Specification.

  • 16.7 If the Customer gives notice in writing to Ajenta within a reasonable time of discovery but in any event no later than 7 days after discovery that some or all of the Goods do not comply with the warranty set out in clause 16.6:-

    • a. Ajenta is given a reasonable opportunity of examining such Goods; and

    • b. the Customer (if asked to do so by Ajenta) returns such Goods to Ajenta’s place of business at Ajenta’s cost,

    • c. the Ajenta shall, at its option, replace or refund the defective Goods.

  • 16.8 Ajenta shall not be liable for Goods’ failure to comply with the Specification in any of the following events:

    • a. the Customer makes any use of such Goods after giving notice in accordance with clause 16.7;

    • b. the defect arises because the Customer failed to follow Ajenta’s oral or written instructions as to the storage, commissioning, installation, use and/or maintenance of the Goods (if no instructions given) good trade practice regarding the same;

    • c. the defect arises as a result of Ajenta following any specification of the Goods supplied by the Customer;

    • d. the Customer uses, alters or repairs such Goods without the written consent of Ajenta;

    • e. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

    • f. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

  • 16.9 Except as provided in this clause 16, Ajenta shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 16.6.

  • 16.10 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

  • 16.11 These Conditions shall apply to any replacement Goods supplied by Ajenta.

  • 16.12 The risk in the Goods shall pass to the Customer on completion of delivery.

  • 16.13 Title to the Goods shall not pass to the Customer until Ajenta has received payment in full (in cash or cleared funds) for:- (a) the Goods; and (b) any other goods or services that Ajenta has supplied to the Customer in respect of which payment has become due.

  • 16.14 Until title to the Goods has passed to the Customer, the Customer shall:

    • a. hold the Goods on a good faith basis so that they remain readily identifiable as Ajenta’s property;

    • b. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

    • c. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

17. Force majeure

Ajenta shall have no liability to the Customer under this Contract if it is prevented from or delayed in performing its obligations under this Contract, 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 Ajenta 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.

18. Conflict

If there is an inconsistency between any of the provisions in the main body of these Conditions and the Order, the provisions in the main body of these Conditions shall prevail.

19. Variation

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

20. Waiver

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

21. Rights and remedies

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

22. Severance

  • 22.1 If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

  • 22.2 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.

23. Entire agreement

  • 23.1 This Contract 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.

  • 23.2 Each party acknowledges that in entering into this Contract 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 Contract.

  • 23.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

  • 23.4 Nothing in this clause shall limit or exclude any liability for fraud.

24. Assignment

  • 24.1 The Customer shall not, without the prior written consent of Ajenta, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

  • 24.2 Ajenta 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 Contract.

25. No partnership or agency

Nothing in this Contract 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).

26. Third party rights

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

27. Notices

  • 27.1 Any notice required to be given under this Contract 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 Contract, or such other address as may have been notified by that party for such purposes.

  • 27.2 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).

28. Governing law and Jurisdiction

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