Terms & Conditions

Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions.

1. Definitions

1.1  In these Terms and Conditions, except to the extent expressly provided otherwise:

“Acceptance Criteria” means:

(a) the Platform and Hosted Services conforming in all material respects with the Hosted Services Specification; and

(b) the Hosted Services being free from Hosted Services Defects;

“Acceptance Period” means a period of 10 Business Days following the making available of the Hosted Services to the Customer for the purposes of testing in accordance with Clause 4 or any repeated making available of the Hosted Services to the Customer for the purposes of testing in accordance with Clause 4, or such other period or periods as the parties may agree in writing;

“Acceptance Tests” means a set of tests designed to establish whether the Hosted Services meet the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by the Provider acting reasonably;

“Access Credentials” means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

“Anti-Corruption Laws” means all applicable anti-bribery and anti-corruption laws including the Bribery Act 2010;

“Anti-Slavery Laws” means all applicable anti-slavery and anti-human trafficking laws including the Modern Slavery Act 2015;

“API” means the ‘application programming interface’ for the Hosted Services defined by the Provider and made available by the Provider to the Customer;

“Business Day” means any weekday other than a bank or public holiday in England;

“Business Hours” means the hours of 09:00 to 17:00 GMT on a Business Day;

“CCN” means a change control notice issued in accordance with Clause 17;

“CCN Consideration Period” means the period of 10 Business Days following the receipt by a party of the relevant CCN from the other party;

“Change” means any change to the scope of the Services OR any change to the Agreement;

“Charges” means such amounts as may be agreed in writing by the parties from time to time (N3O’s daily consulting rate based on service);

“Confidential Information” means the Provider Confidential Information and the Customer Confidential Information;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

“Customer” means the person or entity identified as such in Section 1 of the Service Agreement;

“Customer Confidential Information” means:

(a) any information disclosed by the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked or described as “confidential”; or (ii) should have been reasonably understood by the Provider to be confidential; and

(b) the Customer Data;

“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);

“Customer Indemnity Event” has the meaning given to it in Clause 27;

“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding personal data with respect to which the Provider is a data controller;

“Customer Representatives” means the person or persons identified as such in Section 6 of the Service Agreement, and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

“Customer Systems” means the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with, the Hosted Services;

“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom’s Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);

“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available to the Customer;

“Effective Date” (Go-live date) means the date upon which the system is deemed to have gone live. This is either by confirmation from the Provider that onboarding and implementation is complete, or the system is available for day-day use/real life transactions.

“Execution Date” means the date upon which the parties execute a hard-copy (or signed soft-copy) Service Agreement.

“Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider’s obligations under the Agreement;

“Feature request” means a request for an enhanced feature of the Hosted Services, whether made through the development, configuration or integration of software, or otherwise;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Hosted Services” as specified in the Hosted Services Specification which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

“Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;

(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;

“Hosted Services Specification” means the specification for the Platform and Hosted Services;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

“Minimum Term” means, in respect of the Agreement, the period of 12 months (or in cases of 2 year contracts, 24 months) beginning on the Effective Date;

“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;

“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services;

“Provider” means N3O Ltd, a company incorporated in England, registration number [11685409) having its registered office at 25 Mayesford Road, Romford, England, RM6 4NU, a partnership established under the laws of England;

“Provider Confidential Information” means:

(a) any information disclosed by the Provider to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and

(b) the terms of the Agreement;

“Provider Indemnity Event” has the meaning given to it in Clause 27;

“Provider Representatives” means the person or persons identified as such in Section 6 of the Service Agreement, and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of the appointment;

“Remedy Period” means a period of 20 Business Days following the Customer giving to the Provider a notice that the Hosted Services have failed the Acceptance Tests, or such other period as the parties may agree in writing;

“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

“Service Agreement” means an online agreement published by the Provider and completed and submitted by the Customer, or a hard-copy agreement signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

“Set Up Services” means the configuration, implementation and integration of the Hosted Services in accordance with Section 2 of the Service Agreement;

“Support Services” means support in relation to [the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services];

“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;

“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the Service Agreement, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

“Third Party Services” means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider;

“Update” means a hotfix, patch or minor version update to any Platform software;

“Upgrade” means a major version upgrade of any Platform software; and

“User Interface” means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.

2. Term

2.1  The term of this agreement shall come into force upon the “effective date”. This is also known as the “Go-live date”.

2.2  The Agreement shall continue in force for the minimum duration as determined in section 4.3 of the Service Agreement, subject to termination in accordance with Clause 30 or any other provision of these Terms and Conditions. This will be extended upon mutual agreement (See section 20 – subscription renewal)

2.3  Unless the parties expressly agree otherwise in writing, each Service Agreement shall create a distinct contract under these Terms and Conditions.

3. Set Up/Onboarding Services

3.1  The Provider shall provide the Set Up Services to the Customer.

3.2  The Provider shall use all reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in Section 3 of the Service Agreement.

3.3  The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 28.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

3.4  Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

4. Acceptance procedure

4.1  During each Acceptance Period, the Customer shall carry out the Acceptance Tests.

4.2  The Provider shall provide to the Customer assistance and co-operation in relation to the carrying out of the Acceptance Tests at the end of the onboarding.

4.3  Before the end of the Acceptance Period, the Customer shall give to the Provider a written notice specifying whether the Hosted Services have passed or failed the Acceptance Tests.

4.4  If the Customer fails to give to the Provider a written notice in accordance with Clause 4.3, then the Hosted Services shall be deemed to have passed the Acceptance Tests.

5. Hosted Services

5.1  The Provider shall provide to the Customer upon the completion of the Set Up Services the Access Credentials necessary to enable the Customer to access and use the Hosted Services.

5.2  The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services for the internal business purposes of the Customer in accordance with the Documentation during the Term.

5.3  The licence granted by the Provider to the Customer under Clause 5.2 is subject to the following limitations:

(a) The User Interface may only be used through a Supported Web Browser;

(b) the User Interface may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;

(c) the User Interface may only be used by the named users identified by he Customer, providing that the Customer may change, add or remove a designated named user;

(d) the User Interface must not be used at any point in time by more than the number of concurrent users specified in the Service Agreement, providing that the Customer may add or remove concurrent user licenses in accordance with the license change procedure defined by the Hosted Services; and

(e) The API may only be used by an application or applications approved by the Provider in writing.

5.4       Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 5.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Hosted Services;

(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;

(c) the Customer must not use the Hosted Services to provide services to third parties;

(d) the Customer must not republish or redistribute any content or material from the Hosted Services;

(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and

(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services.

5.5  The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.

5.6  The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.

5.7  The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer comply with Schedule 1 (Acceptable Use Policy).

5.8  The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

5.9  The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.

5.10  The Customer must not use the Hosted Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

5.11  For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

6. Feature requests

6.1  The Customer may submit an idea for a feature request via the ENGAGE support desk or Portal. The request will be reviewed as per a number of criteria including priority, popularity with other clients and overall roadmap. The Provider reserves the right to accept, reject or delay this a suggested feature as appropriate.

6.2  The Provider endeavors to respond to feature requests within 60 days of submission. The response does not constitute or create, and shall not be deemed to constitute or create any legally binding or enforceable obligation on the part of the Provider.

6.3  From the time and date when a feature request is first delivered or made available by the Provider to the Customer, the feature request shall form part of the Platform, and accordingly from that time and date, the Customer’s rights to use the feature shall be governed by Clause 5.

6.4  The Customer acknowledges that the Provider may make any feature request available to any of its other customers or any other third party following the making available of the feature request to the Customer.

7. Scheduled maintenance

7.1  The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 7.

7.2  The Provider shall where practicable give to the Customer at least 3 Business Days’ prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.

7.3  The Provider shall endeavor to carry out the maintenance outside Business Hours.

8. Support Services

8.1  The Provider shall provide the Support Services to the Customer during the Term and with reasonable skill and care.

8.2  The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).

8.3  The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

9. Customer obligations

9.1  Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a) co-operation, support and advice;

(b) information and documentation; and

(c) governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

9.2  The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.

10. Customer Systems

10.1  The Customer shall ensure that the Customer Systems comply, and continue to comply during the Term, with the requirements of Section 4 of the Service Agreement in all material respects, subject to any changes agreed in writing by the Provider.

11. Customer Data

11.1  The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.

11.2  The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

11.3  The Provider shall create a back-up copy of the Customer Data at least daily, and shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken (for the purpose of continuity).

12.  Integrations with Third Party Services

12.1  The Hosted Services are integrated with certain Third Party Services and the Provider may integrate the Hosted Services with additional Third Party Services at any time.

12.2  Notwithstanding the presence of any Third Party Services integration, particular Third Party Services shall only be activated with respect to the Hosted Services account of the Customer by:

(a)  the Customer; or

(b)  the Provider with the prior written agreement of the Customer.

12.3  The Provider shall use reasonable endeavours to maintain any integration with Third Party Services that has been activated with respect to the Hosted Services account of the Customer. Subject to this, the Provider may remove, suspend, deactivate or limit any Third Party Services integration at any time in its sole discretion.

12.4  The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.

12.5  The Customer acknowledges and agrees that:

(a) the activation of Third Party Services with respect to the Hosted Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted Services to the relevant Third Party Services and vice versa;

(b) the Provider has no control over, or responsibility for, any disclosure, modification, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third Party Services;

(c) the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and use of Customer Personal Data by, a provider of Third Party Services is lawful; and

(d) the Customer shall ensure that the transfer of Customer Data to a provider of Third Party Services does not infringe any person’s Intellectual Property Rights or other legal rights and will not put the Provider in breach of any applicable laws.

12.6     Additional Charges may be payable by the Customer to the Provider in respect of the activation and/or use of a Third Party Services integration, as set out in the Service Agreement.

12.7  Subject to Clause 28.1:

(a) the Provider gives no guarantees, warranties or representations in respect of any Third Party Services; and

(b) the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Services or any provider of Third Party Services.

13.  Interpretation

13.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

13.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

13.3  References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

13.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

14. No assignment of Intellectual Property Rights

14.1  Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

15. Representatives

15.1  The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Agreement will be given by a Provider Representative to a Customer Representative, and the Customer:

(a) may treat all such instructions as the fully authorised instructions of the Provider; and

(b) May decline to comply with any other instructions in relation to that subject matter.

15.2  The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in the Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:

(a) may treat all such instructions as the fully authorised instructions of the Customer; and

(b) May decline to comply with any other instructions in relation to that subject matter.

16. Law and jurisdiction

16.1 These Terms and Conditions shall be governed by and construed in accordance with English law.

16.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.

17. Change control

17.1  The provisions of this Clause 17 apply to each Change requested by a party.

17.2  Either party may request a Change at any time.

17.3. A party requesting a Change shall provide to the other party a completed CCN in the form specified in Schedule 6 (Form of CCN).

17.4  A party in receipt of a CCN may:

(a) accept the CCN, in which case that party must countersign the CCN and return it to the other party before the end of the CCN Consideration Period;

(b) reject the CCN, in which case that party must inform the other party of this rejection before the end of the CCN Consideration Period; or

(c) issue an amended CCN to the other party before the end of the CCN Consideration Period, in which case this Clause 17 will reapply with respect to the amended CCN.

17.5  A proposed Change will not take effect until such time as a CCN recording the Change has been signed by or on behalf of each party.

18. Variation

18.1  The Agreement may not be varied except by means of a written document signed by or on behalf of each party, without prejudice to the requirements of Clause 17.

19.  Expenses

19.1  The Customer shall reimburse the Provider in respect of any Expenses, providing that the Provider must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

19.2  The Provider must collect and collate evidence of all Expenses, and must retain such evidence during the Term and for a period of 90 days following the end of the Term.

19.3  Within 10 Business Days following receipt of a written request from the Customer to do so, the Provider must supply to the Customer such copies of the evidence for the Expenses in the possession or control of the Provider as the Customer may specify in that written request.

20. Subscription Renewal

20.1  In the final 30 days of the minimum term, the Provider will assess the income of the Customer to determine the following year’s subscription fee. If it is within the income band of the initial agreement, the monthly cost will continue as described above in the Service Agreement.

20.2  If the income is above the current band, then the revised fee will be communicated to the Customer.

20.3  If the Customer income is in the 90th percentile of the current band, then the fee will be reviewed after 6 months instead of waiting for the next term.

21. Payments

21.1  The Provider shall issue invoices/receipts for the Charges to the Customer after the invoicing dates set out in Section 5 of the Service Agreement.

21.2  The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 21.

21.3  The Customer must pay the charges by debit card, credit card, direct debit or bank transfer using such payment details as are notified by the Provider to the Customer from time to time.

21.4  If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:

(a) At it’s discretion, provide an additional grace period of 20 business days for payment, from the time of the invoice due date.

(b) If after this time time period, payment has not been made, the Provider reserves the right to cease access to the system until payment has been made.

22. Confidentiality obligations

22.1  The Provider must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Customer Confidential Information; and

22.2  The Customer must:

(a) keep the Provider Confidential Information strictly confidential;

(b) not disclose the Provider Confidential Information to any person without the Provider’s prior written consent and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c) use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Provider Confidential Information; and

22.3  Notwithstanding Clauses 22.1 and 22.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

22.4  No obligations are imposed by this Clause 22 with respect to a party’s Confidential Information if that Confidential Information:

(a)  is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)  is or becomes publicly known through no act or default of the other party;

22.5  The restrictions in this Clause 22 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

22.6  Upon the termination of the Agreement, each party must immediately cease to use the other party’s Confidential Information.

22.7  Within 5 Business Days following the date of effective termination of the Agreement, the relevant party must:

(a) irreversibly delete from its media and computer systems all copies of the other party’s Confidential Information and ensure that the other party’s Confidential Information is irreversibly deleted from the media and computer systems of all persons to whom the relevant party has directly or indirectly disclosed that Confidential Information;

(b) ensure that no other copies of the other party’s Confidential Information remain in the relevant’s party possession or control

(c) certify in writing to the other party that it has complied with the requirements of this Clause 22.7, subject in each case to any obligations that the relevant party has under the Agreement to supply or make available to the other party any data or information, and providing that the relevant party shall have no obligation under this Clause 22.7 to delete or to cease to possess or control any of the other party’s Confidential Information to the extent that the relevant party is required by applicable law to retain that Confidential Information.

22.8  The provisions of this Clause 22 shall continue in force indefinitely following the termination of the Agreement.

23. Publicity

23.1  Neither party may make any public disclosures relating to the Agreement or the subject matter of the Agreement without the prior written consent of the other party with exception that the following public disclosures may be made without consent: Public announcements and marketing materials related to the forming of this relationship.

23.2  Nothing in this Clause 23 shall be construed as limiting the obligations of the parties under Clause 22.

24. Data protection

24.1  The Provider shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

24.2  The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

24.3  The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement:

(a) the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 6 (Data processing information)[ (or such other categories as may be agreed by the parties in writing)]; and

(b) Personal Data of the types specified in Section 2 of Schedule 5 (Data processing information).

24.4  The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 5 (Data processing information).

24.5  The Provider shall only process the Customer Personal Data during the Term, subject to the other provisions of this Clause 24.

24.6  The Provider shall only process the Customer Personal Data on the documented instructions of the Customer including with regard to transfers of the Customer Personal Data to any place outside the EEA and United Kingdom, as set out in these Terms and Conditions or any other document agreed by the parties in writing.

24.7  The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:

(a) the Provider may transfer the Customer Personal Data internally to its own employees, offices and facilities in Pakistan providing that such transfers must be protected by appropriate safeguards and is necessary to provide the service to the Customer.

(b) the Provider may transfer the Customer Personal Data to its sub-processors in the jurisdictions identified in Section 5 of Schedule 5 (Data processing information), providing that such transfers must be protected by any appropriate safeguards identified therein; and

(c) the Provider may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.

24.8  The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

24.9  Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.

24.10  The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

24.11  The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Section 4 of Schedule 5 (Data processing information).

24.12  If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.

24.13  As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data identified in Section 5 of Schedule 5 (Data processing information).

24.14  The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

24.15  The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 24.15.

24.16  The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 36 hours after the Provider becomes aware of the breach.

24.17  The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 24 and the Data Protection Laws. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 24.17.

24.18  The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

24.19  The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 24. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 24.19, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.

25. Warranties

25.1  The Provider warrants to the Customer that the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

25.2  The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

25.3  To the maximum extent permitted by law, the services are provided as-is. This means that, except as expressly stated in these Terms, the Provider does not provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, fitness for a particular purpose or that the functionality of the Services will meet the requirements of the Customer, which are, to the fullest extent permitted by law excluded from the Agreement. Since Customers use the service for a variety of reasons, the Provider does not guarantee the Customer’s specific needs will be met.

26. Acknowledgements and warranty limitations

26.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

26.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

26.3  The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

26.4  The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

27. Indemnities

27.1  The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a “Customer Indemnity Event”).

27.2  The Provider must:

(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer.

28. Limitations and exclusions of liability

28.1 Nothing in these Terms and Conditions will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(c) limit any liabilities in any way that is not permitted under applicable law; or

(d)  exclude any liabilities that may not be excluded under applicable law.

28.2  The limitations and exclusions of liability set out in this Clause 28 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 28.1; and

(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

28.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

28.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

28.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

28.6  Neither party shall be liable to the other party in respect of any loss of use or production.

28.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

28.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

28.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

28.10  The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events.

29. Force Majeure Event

29.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

29.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a) promptly notify the other; and

(b)  inform the other of the period for which it is estimated that such failure or delay will continue.

29.3  A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

30. Termination

30.1  Either party may terminate the Agreement by giving to the other party not less than 30 days written notice of termination, expiring only at the end of the Minimum Term.

30.2  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party commits any material breach of the Agreement, and the breach is not remediable;

(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

30.3  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement)]; or

30.4  The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and

(b) the Provider has given to the Customer at least 30 days written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 30.4.

30.5  The rights of termination set out in the Agreement shall not exclude any rights of termination available at law.

31. Effects of termination

31.1  Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.8, 5.11, 12.7, 13, 19.2, 19.3, 20, 21.2, 21.4, 22, 23, 24, 27, 28, 31, 32, 33.1, 33.2, 33.4, 33.8, 33.9, 34.1, 34.5, 35.1, 35.5, 38, 39, 40, 41, 42, 43, 44 and 45].

31.2  Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

31.3  Within 30 days following the termination of the Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement;

32.  Non-solicitation of personnel

32.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of the Agreement.

32.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of the Agreement.

33. Anti-corruption

33.1  Each party warrants and undertakes to the other that it has complied and will continue to comply with the Anti-Corruption Laws in relation to the Agreement.

33.2  Save to the extent that applicable law requires otherwise, each party must promptly notify the other if it becomes aware of any events or circumstances relating to the Agreement that will or may constitute a breach of the Anti-Corruption Laws (irrespective of the identity of the person in breach).

33.3  The Provider shall use all reasonable endeavours to ensure that all persons that:

(a) provide services to the Provider (including employees, agents and subsidiaries of the Provider); and

(b) are involved in the performance of the obligations of the Provider under the Agreement,

will comply with the Anti-Corruption Laws, along with express obligations on the provider of services equivalent to the obligations set out in this Clause 33.

33.4  Nothing in these Terms and Conditions shall prevent either party from reporting a breach of the Anti-Corruption Laws to the relevant governmental authorities.

33.5  Any breach of this Clause 33 shall be deemed to constitute a material breach of the Agreement.

34. Anti-slavery

34.1  Each party warrants and undertakes to the other that it has complied and will continue to comply with the Anti-Slavery Laws.

34.2  The Provider shall ensure that all persons that provide services or supply products to the Provider, where such services or products are used in the performance of the obligations of the Provider under the Agreement, will comply with the Anti-Slavery Laws.

34.3  Any breach of this Clause 34 shall be deemed to constitute a material breach of the Agreement.

35. Notices

35.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as “written notice” in these Terms and Conditions.

35.2  Any notice given by one party to the other party under these Terms and Conditions must be:

(a) delivered personally;

(b) sent by courier;

(c) sent by recorded signed-for post;

(d) sent by email; or

(e) submitted using recipient party’s online contractual notification facility,

using the relevant contact details set out in Section 7 of the Service Agreement.

35.3  The addressee and contact details set out in Section 7 of the Service Agreement may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 36.

35.4  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

36. Subcontracting

36.1  Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.

36.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

36.3  Notwithstanding the provisions of this Clause 37 but subject to any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract.

37. No waivers

37.1  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

37.2  No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

38. Severability

38.1  If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

38.2  If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

39. Third party rights

39.1  The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

39.2  The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.

40. Entire agreement

40.1  The Service Agreement, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

40.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

40.3  The provisions of this Clause 40 are subject to Clause 28.1.