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We licence use of the Software to you on the basis of the Licence.

We do not sell the Software to you. We remain the owners of the Software at all times.

OPERATING SYSTEM REQUIREMENTS: THE DOWNLOAD AND INSTALL VERSION OF THE SOFTWARE REQUIRES A COMPUTER WITH A MINIMUM OF 8GB OF AVAILABLE MEMORY AND DOCKER (WWW.DOCKER.COM) INSTALLED. THE CLOUD VERSION OF THE SOFTWARE REQUIRES A MODERN BROWSER SUCH AS CHROME.

IMPORTANT NOTICE TO ALL USERS:

• YOU HAVE, PRIOR TO USING THE SOFTWARE, TOLD US THAT YOU HAVE READ AND ACCEPT THE LICENCE BY CHECKING THE "I HAVE READ AND ACCEPT THE TERMS OF THE LICENCE" BOX. THE TERMS OF THE LICENCE THEREFORE BIND YOU AND YOU MUST ONLY USE THE SOFTWARE IN ACCORDANCE WITH THE LICENCE. THE TERMS OF THE LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 9.
• IF YOU DO NOT AGREE TO THE TERMS OF THE LICENCE, WE WILL NOT LICENCE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE USING THE SOFTWARE IMMEDIATELY.

BACKGROUND

The Supplier has developed and provides a service consisting of internet access to its Arcade Trader application software at its remote computer location for the purpose of algorithmic trading. The Software is also available on a download and install basis. The Customer wishes to use the Supplier’s service / software in its business operations and has agreed to take and pay for the Supplier’s service / software subject to the terms and conditions of this licence agreement (Licence).

AGREED TERMS

1.  INTERPRETATION  

• 1.1  Definitions:
  • Authorised Users: those employees and independent contractors of the Customer who are entitled to use the Software through the Hosting Services under this Licence, as further described in Clause 3.4(b).
  • Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 9.6 or Clause 9.7.
  • Customer Data: the data inputted into the information fields of the Software by the Customer, by Authorised Users, or by the Supplier on the Customer’s behalf.
  • Data Protection Legislation: unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR.
  • Disclaimer and Risk Warning: the disclaimer and risk warning on the Supplier’s website at https://arcadetrader.com/risk-disclaimer.html
  • Download and Install Version: the version of the Software that is installed on and accessed via the Customer’s computer hardware and not accessed via the Hosting Services.
  • Fees: the fees payable to the Supplier, as set out in an Order Form.
  • Hosting Services: the services that the Supplier provides to allow Authorised Users to access and use the Software at its remote computer location.
  • Maintenance: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Software and Hosting Services.
  • Order Form: a detailed order form, agreed in accordance with Clause 2.2, identifying, inter alia, the Software and the Services to be provided, the number of Authorised Users and the Fees.
  • Privacy Policy: the Supplier’s policy relating to the privacy and security of the Customer Data, made available to the Customer by the Supplier online at https://arcadetrader.com/privacy.html or at such other web address notified by the Supplier to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
  • Service Level Arrangements: the service level arrangements set out on the Supplier’s website at https://arcadetrader.com/sla.html or at such other web address notified by the Supplier to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
  • Services: the Hosting Services and/or Maintenance and/or Support Services as applicable, given the context in which the term Services is used.
  • Software: the Supplier’s proprietary software, known as Arcade Trader, in machine-readable object code form only as described on the Supplier’s website at https://arcadetrader.com, or at such other web address notified by the Supplier to the Customer from time to time, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Licence.
  • Software Specification: the functionality and performance specifications for the Software, as set out on the Supplier’s website at https://arcadetrader.com, or at such other web address notified by the Supplier to the Customer from time to time.
  • Support Services: the support services, described in the Support Services Schedule, provided that such services are included within the Software package purchased by the Customer as set out on the Order Form.
  • Support Services Schedule: the schedule describing the Support Services on the Supplier’s website at https://arcadetrader.com, or at such other web address notified by the Supplier to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
  • Transaction: all or any part of a securities trade, stock market trade or other financial transaction, model or forecast, quotation or mathematical calculation performed by or on behalf of the Customer using the Services and/or Software.
  • 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  Clause headings shall not affect the interpretation of this Licence.
• 1.3  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• 1.4  A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
• 1.5  Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
• 1.6  A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Licence.

2.  DOCUMENTS COMPRISING THE LICENCE AND ORDER OF PRECEDENCE 

• 2.1 The Licence comprises the terms and conditions hereunder, together with the following documents (“Incorporated Documents”), each of which are incorporated in the Licence by reference:
  • (a) the Order Form;
  • (b) the Privacy Policy;
  • (c) the Service Level Arrangements;
  • (d) the Support Services Schedule (if applicable); and
  • (e) the Disclaimer and Risk Warning, a copy of which is available at https://arcadetrader.com/risk-disclaimer.html;
• 2.2 Both parties shall sign an Order Form when it is agreed and the Services shall not otherwise commence, nor shall access to the Software be otherwise granted.
• 2.3 For the avoidance of doubt, in performing its obligations under this Licence the Customer shall be bound by and shall comply with the Incorporated Documents.
• 2.4 If there is an inconsistency between any of the provisions of this Licence and the provisions of the Incorporated Documents, the provisions of the relevant Incorporated Document(s) shall prevail.

3.  HOSTING SERVICES, ACCESS TO THE SERVICES AND LICENCE RESTRICTIONS

• 3.1   The Supplier shall perform the Hosting Services, Maintenance and, where applicable, the Support Services. The Service Level Arrangements shall apply.
• Hosted version
• 3.2 The Supplier shall, during the term of the Licence, provide the Services to the Customer on and subject to these terms. Access to the Services shall be via secure login details which the Supplier shall provide to the Customer at the commencement of the Licence term.
• Download and Install Version
• 3.3 Where the Customer has purchased the Download and Install Version:
• (a) the Supplier shall supply to the Customer the codes and passwords required to download the Software from the Supplier’s website, together with instructions to the Customer as to how to install the Software on its computer hardware;
• (b) the Customer shall be responsible for installing the Software and for ensuring that each item of its computer hardware necessary to access and execute the Software is in working order no later than the date of installation; and
• (c) the Hosting Services and Service Level Arrangements shall not apply.
• 3.4   In relation to Authorised Users:
• (a)   the Customer’s access to the Hosting Services shall be limited to the number of individual Authorised Users, being employees or independent contractors of the Customer, as set out on the relevant Order Form;
• (b)   the Customer shall maintain a written list of current Authorised Users of the Software, and the Customer shall provide such list to the Supplier as may be reasonably requested by the Supplier from time to time;
• (c)   the Customer shall ensure that each Authorised User keeps a secure password for his use of the Software and that each Authorised User keeps his password confidential;
• (d)   the Supplier may audit the Software regarding the name and password for each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s normal conduct of business; and
• (e)   if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.
• 3.5   In relation to the Software:
• (a)   the Supplier hereby grants to the Customer on and subject to the terms and conditions of this Licence a non-exclusive, non-transferable licence to allow Authorised Users to access the Software through the Hosting Services and to use the Software solely for the Customer’s business purposes;
• (b)   the Customer shall not store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
• (c)   the rights provided under this Clause 3.5 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
• (d)   the Customer shall not:
  • (i)   attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Licence or as may be allowed by any applicable law which is incapable of exclusion by Licence between the parties; or
  • (ii)   attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by Licence between the parties; or
  • (iii)   access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services; or
  • (iv)   use the Software or Hosting Services to provide services to third parties; or
  • (v)   transfer, temporarily or permanently, any of its rights under this Licence, or
  • (vi)   attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this Clause 3.5(d); and
• (e)   the Customer shall use its best endeavours to prevent any unauthorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use.
Additional Authorised Users
• 3.6 Subject to clause 3.7, the Customer may, from time to time during any Licence term, purchase additional Authorised User subscriptions in excess of the number set out in the Order Form and the Supplier shall grant access to the Services and/or Software to such additional Authorised Users in accordance with the provisions of the Licence.
• 3.7 The Customer may purchase additional subscriptions by agreeing a subsequent Order Form with the Supplier in writing setting out the number of additional Authorised User subscriptions purchased and the relevant additional fees payable (and when they are payable).

4.   CUSTOMER DATA

• 4.1   The Customer shall own all rights, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Customer Data.
• 4.2   The Supplier shall follow its archiving procedures for Customer Data as described on its website at https://arcadetrader.com/privacy.html. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure referred to above. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
• 4.3   Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
• 4.4   The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
• 4.5   Without prejudice to the generality of clause 4.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Licence.

5.   SUPPLIER’S OBLIGATIONS

• 5.1   The Supplier undertakes that the Services will be performed substantially in accordance with the Software Specification and with reasonable skill and care.
• 5.2   The undertaking at Clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier’s instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 5.1. Notwithstanding the foregoing, Supplier:
  • (a) does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free;
  • (b) does not warrant the compatibility of the Services with any hardware (including peripherals), software, products or service other than as set out in the Licence; and
  • (c) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  •  
• 5.3   This Licence shall not prevent the Supplier from entering into similar licences with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Licence.

6.   CUSTOMER’S OBLIGATIONS  

• (a)   provide the Supplier with:
  • (i)   all necessary co-operation in relation to this Licence; and
  • (ii)   all necessary access to such information as may be required by the Supplier;
• in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other business applications;
• (b)   without affecting its other obligations under the Licence, comply with all applicable laws, regulations, codes, standards and regulatory requirements with respect to its activities under the Licence;
• (c)   carry out all other Customer responsibilities set out in the Licence in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
• (d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of the Licence and shall be responsible for any Authorised User’s breach of the Licence;
• (e)   obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Licence, including without limitation the Services;
• (f)   ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
• (g)   be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
• (h) not alter, obscure, remove, interfere with or add to any of the Supplier’s trade marks, trade names, markings or notices affixed to or contained in the Services or any part of them;
• (i) promptly report any material fault in the Services to the Supplier by telephone or email to the Supplier’s technical support team that the Supplier may from time to time provide;
• (j) follow and observe any written instructions issued by the Supplier from time to time regarding the use of the Services which in the Supplier’s reasonable opinion are necessary in the interests of data protection and information and web security or to maintain or improve the quality of the Services; and
• (k) indemnify the Supplier against all claims and proceedings and all liability, loss, costs and expenses incurred by the Supplier as a result of any third party claim made or brought in respect of a Transaction.

7.   CHARGES AND PAYMENT  

• 7.1   The Customer shall pay the Fees as set out on the Order Form. Fees are payable monthly unless otherwise stipulated on an Order Form.
• 7.2   All amounts and Fees stated or referred to in this Licence are:
  • (a) payable in United States Dollars; and
  • (b) exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
   
• 7.3   The Supplier shall invoice the Customer for the Fees monthly in advance, at least 14 days’ prior to the commencement of the proceeding calendar month. Each invoice is due and payable 7 days after the invoice date. If the Supplier has not received payment by the due date, and without prejudice to any other rights and remedies of the Supplier:
  • (a) the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
  • (b) the Supplier may without notice suspend the Services until such time as payment has been made.

8.   PROPRIETARY RIGHTS  

• 8.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this Licence does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
• 8.2 The intellectual property rights of the Supplier referred to in Clause 8.1 include commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and investment of considerable amounts of time and money. The Customer therefore acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Licence and that the Supplier shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this Licence.
• 8.3 Nothing in this Agreement shall affect the Customer’s intellectual property rights in work and materials that it has developed or acquired prior to commencement of the Licence and independently from the Supplier’s performance of the Services. Where the Customer provides the Supplier with such work or materials in connection with this Licence, the Customer warrants and undertakes that they will be original works of authorship and that the Supplier’s use or possession of them will not subject the Supplier to any claim for infringement of any proprietary rights of any third party.

9.  CONFIDENTIALITY

• 9.1   Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Licence. A party’s Confidential Information shall not include information that:
  • (a)   is or becomes publicly known other than through any act or omission of the receiving party; or
  • (b)   was in the other party’s lawful possession before the disclosure; or
  • (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.
• 9.2   Subject to clause 9.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Licence.
• 9.3   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 Licence.
• 9.4   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 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
• 9.5   Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
• 9.6   The Customer acknowledges that the Software and the Services constitute the Supplier’s Confidential Information.
• 9.7  The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
• 9.8   No party shall make, or permit any person to make, any public announcement concerning this Licence 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.
• 9.9   The above provisions of this Clause 9 shall survive termination of this Licence, however arising.

10.   INDEMNITY  

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

11.   LIMITATION OF LIABILITY  

• 11.1   This Clause 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and
  • (a)   arising under or in connection with this Licence;
  • (b)   in respect of any use made by the Customer of the Services, the Software or any part of them; and
  • (c)   in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Licence.   sub-contractors) to the Customer:
• 11.2   Except as expressly and specifically provided in this Licence:
  • (a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction. THE CUSTOMER HAS READ, ACKNOWLEDGED AND ACCEPTED THE DISCLAIMER AND RISK WARNING;
  • (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 Licence; and
  • (c) EXCEPT WHEN OTHERWISE STATED IN WRITING THE SUPPLIER PROVIDE THE SOFTWARE AND SERVICES "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
• 11.3   Nothing in this Licence excludes the liability of the Supplier:
  • (a)   for death or personal injury caused by the Supplier’s negligence; or
  • (b)   for fraud or fraudulent misrepresentation.
• 11.4   The Service Level Arrangements state the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Services, or their non-performance and non-availability.
• 11.5   Subject to Clause 11.3 and Clause 11.4:
  • (a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), 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 Licence; and
  • (b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Licence shall be limited to the Fees paid by the Customer for the Services and/or the Software during the 12 months preceding the date on which the claim arose.

12.   TERM AND TERMINATION  

• 12.1   This Licence shall commence on and shall continue for the date and period specified in the Order Form, unless otherwise terminated as provided in this Clause 12.
• 12.2 A rolling monthly Licence may be terminated by a party on 30 days’ written notice to the other party, provided that where such termination notice is given by the Customer, the Customer shall not be entitled to any refund (partial or otherwise) of Fees in respect of any Licence period that has unexpired as at the date of termination.
• 12.3   Without affecting any other right or remedy available to it, the Supplier may terminate this Licence with immediate effect by giving written notice to the Customer if:
  • (a) the Customer fails to pay any amount due under this Licence 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 Customer commits a material breach of any term of this Licence 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 Customer repeatedly breaches any of the terms of this Licence 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 Licence;
  • (d)   the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
  • (e)   the Customer 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 (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
  • (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 the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; 
  • (g)   an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
  • (h)   the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • (i)   a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
  • (j)   a creditor or encumbrancer of the Customer 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 Customer’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 Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 12.2(d) to Clause 12.2(j) (inclusive); or
  • (l)   the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
• 12.4   On termination of this Licence for any reason:
  • (a)   all licences granted under this Licence shall immediately terminate;
  • (b)   the Customer shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the Supplier;
  • (c)   the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than two months after the effective date of the termination of this Licence, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
  • (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 Licence which existed at or before the date of termination shall not be affected or prejudiced.

13.   FORCE MAJEURE  

Neither party shall be in breach of this Licence nor liable for delay in performing, or failure to perform, any of its obligations under this Licence if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network or the internet, 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. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Licence by giving 30 days’ written notice to the other party.

14.   WAIVER  

• 14.1   A waiver by the Supplier of any right under this Licence is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
• 14.2   Unless specifically provided otherwise, rights arising under this Licence are cumulative and do not exclude rights provided by law.

15.   RIGHTS AND REMEDIES  

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

16.   SEVERANCE  

• 16.1   If any provision or part-provision of this Licence is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Licence.
• 16.2   If any provision or part-provision of this Licence is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.   ENTIRE AGREEMENT  

• 17.1   This Licence constitutes the entire agreement between the parties and supersedes and extinguishes all previous Licences, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
• 17.2   The Customer acknowledges that in entering into this Licence 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 Licence.
• 17.3   The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence.
• 17.4   Nothing in this clause shall limit or exclude any liability for fraud.

18.   ASSIGNMENT  

• 18.1   The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Licence.
• 18.2   The Supplier may at any time assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Licence.  

19.   NO PARTNERSHIP OR AGENCY  

Nothing in this Licence is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

20.   CHANGES TO THE LICENCE

• 20.1 We may need to change the terms of the Licence to reflect changes in law or best practice or to deal with additional features which we introduce or for some other good reason.
• 20.2 We will give you at least 14 days’ notice of any change by sending you an email with details of the change or notifying you of a change when you next login to the Services.
• 20.3 If you do not accept the notified changes you will not be permitted to continue to use the Services and/or Software.
• 20.4 Except as aforementioned, no variation of this Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21.   THIRD PARTY RIGHTS  

This Licence does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence.

22.   GOVERNING LAW AND JURISDICTION

• 22.1 This Licence and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
• 22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Licence or its subject matter or formation (including non-contractual disputes or claims).