Terms for the provision of the AppGo Mobile Apps and Related Services
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
AppGo, Us, We or Our: AppGo Limited (company number 10314829) whose registered office is at McGee Group (holdings) Ltd, 340 – 342 Athlon Road, Wembley, Middlesex HA0 1BX
Authorised Representative: Your employee or individual identified in the Order Form, who is authorised to liaise with Us in the set-up, configuration and provision of the Services, and who is able to make binding decisions on Your behalf.
Authorised Users: means Your employees that are licensed under clause 7.1 to use the Subscription Apps in accordance with the Contract
Business Day: means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business
Confidential Information: means information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or these Conditions
Contract: the contract between Us and You consisting of the Order Form, these Conditions and any applicable Statement of Work together with any other documents (if any) that are incorporated by reference in the Statement of Work
Customer, You or Your: the customer identified in the accompanying Order Form who is purchasing services from us whether a firm, or company
Customer Data: any data (including personal data as set out in section 1(1) of the Data Protection Act 1998) that is owned by You and processed via the Subscription Apps whether input by Us, by You or by an Authorised User
Deliverables: means any outputs of the Services to be provided by Us to You as specified in a Statement of Work and any other documents, software, products and materials provided by Us to You in relation to the Services
Documentation: any of Our user documentation or service specifications that is made available to You in accordance with clause 7.1, including but not limited to core product design document, user design documents and the service level agreement.
Effective Date: means the date that the Contract is established pursuant to clause 2.3.
Initial Term: means 2 months, where You have selected a monthly subscription in the Order Form, or 12months where You have selected an annual subscription in the Order Form.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world
Order Form: the order setting out the Subscription Apps to be purchased by You and any Professional Services that We agree to supply to you to configure the Subscription Apps
Professional Services: the configuration, installation and other professional services to be provided by Us to You under the Contract as described in the accompanying Order Form and/or Statement of Work
Services: the Subscription Services and Professional Services as more particularly described in the Order Form and/or Statement of Work as applicable
Statement of Work: a statement setting out the Professional Services to be provided by Us to You in order to configure the Subscription Apps to suit Your operating environment, and setting out the estimated timetable and responsibilities for the provision of the Professional Services by Us in accordance with the Contract
Subscription Apps: the specific mobile applications offered by Us, that You have agreed to access as stated in an applicable Order Form
Subscription Services: the provision of the Subscription Apps
Subscription Start Date: the earlier of the (i) date the Subscription Services are made available to You for use, or (ii) 60 days after the Effective Date
Subscription Term: is as defined in clause 14.2, and specified for each Subscription App in the accompanying Order Form
Terms: the terms and conditions set out in this document
VAT: value added tax chargeable under English law for the time being and any similar additional tax
1.2 The headings in this agreement are inserted for convenience only and will not affect its construction.
1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Unless the context otherwise requires, a reference to one gender will include a reference to the other genders.
1.5 Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.
VAT Registration Number: GB 248 5611 90.
2 APPLICATION OF THESE TERMS
2.1 These Terms shall apply to and be incorporated into the Contract and shall prevail over any inconsistent terms or conditions contained in or referred to in the Order Form or the Statement of Work, confirmation of order or specification, or implied by law, trade, custom practice or any course of dealings.
2.2 No addition to, variation of, exclusion or attempted exclusion of any provision in the Contract shall be binding on Us, unless it is in writing, signed by Our duly authorised representative and expressly overriding the relevant provision in these Terms.
2.3 Your signature, or electronic confirmation of the Order Form constitutes an offer by You to purchase the Services specified in it on these Terms; accordingly, the execution and return of the acknowledgement of the Order Form (by email or otherwise), and/or the execution of a Statement of Work or Our commencement or execution of work pursuant to the Order Form, establishes a contract for the supply and purchase of those Services on these Terms. Any other terms and conditions attached to, enclosed with, or referred to in, the Order Form or any subsequent Statement of Work shall not apply to this Contract.
2.4 In the event of any conflict between an Order Form, a Statement of Work or these terms and conditions, the Statement of Work will take priority over the Order Form, and both the Statement of Work and the Order Form will take priority over these Terms.
3 ACCEPTANCE OF STATEMENT OF WORK
3.1 Following acceptance of an Order Form, We shall work with You to complete a statement of work outlining the detailed scope of the services to be delivered in order to implement the Subscription Services outlined in the Order Form. You shall provide Us with sufficient information as We may reasonably require to finalise the draft statement of work. If you do not agree with the draft statement of work, We will meet with You to discuss amendments to the scope of the services, and/or the timetable and both parties shall act reasonably in accommodating the requirements of the other party, within the constraints of the agreed project. Once agreed, both parties shall sign the document and the Statement of Work shall be finalised, and We will begin to deliver the Professional Services. Once agreed, the Statement of Work may only be varied in accordance with clauses 4.2 or 15.2.
3.2 If the draft statement of work cannot be agreed within a reasonable period of time, then either of You or We may give reasonable notice to cancel the Contract, and We reserve the right to invoice You for Our reasonable, and unavoidable costs that may have been incurred by Us in anticipation of the provision of the Services in accordance with the Order Form.
3.3 If You cancel Our Services or withdraw Your instructions before the parties have agreed a Statement of Work, We reserve the right to invoice You within 30 days of Your cancellation for all costs incurred by Us including (but not limited to) costs resulting from or connected to Our preparation of the Statement of Work, arranging of the Services and any work in progress.
3.4 You shall pay any invoice raised under this clause in accordance with the payment terms within clause 8.8.
4 CHANGES TO THE SERVICES
4.1 Subject to clause 4.2 below if either party wishes to make any changes to the scope or timings of the Services, it shall provide details of the change in writing to the other party. If You request a change, We will, within a reasonable period provide a written estimate of the likely impact of the requested change on the scope of the Services, the timetable, the price and any other changes. If:
4.1.1 You wish Us to proceed with a change, We have no obligation to do so unless and until the parties have agreed in writing on the necessary variations to Our charges, the Order Form, the Statement of Work and any other relevant terms of the Contract to take account of the change; and
4.1.2 We request a change to the Services, You agree not to unreasonably withhold or delay Your consent to the change.
4.2 You acknowledge that from time to time we may unilaterally amend the Documentation, including the specification, functionality or performance of the Subscription App and/or the scope of the Professional Services if, for whatever reason, We are no longer able to provide the Services as intended. We shall notify You about an amendment to a Statement of Work (including but not limited to any change to the cost or timescales) within a reasonable period of time.
4.3 You acknowledge that from time to time we may unilaterally amend the specification, functionality of the Subscription App providing that there is no material diminution in the performance of the Subscription App.
4.4 If You wish to cancel, by notice in writing, any Professional Services:
4.4.1 specified in the Order Form as to be delivered during office hours, We reserve the right to charge You a cancelation fee calculated at the following rates:
(a) if more than 5 Business Days' notice is given, no charge:
(b) if notice of 5 Business Days', or less, 50% of the total price for cancelled Professional Services;
(c) if notice of 3 Business Days' or less, 70% of the total price for cancelled Professional Services; or
(d) 100% of the total price for the cancelled Professional Services if You cancel within 24 hours of the time the Professional Services were due to start;
4.4.2 specified in the Order Form as to be delivered outside of Our office hours, We reserve the right to charge You a cancelation fee calculated at the following rates:
(a) if more than 10 Business Days' notice is given, no charge:
(b) if notice of 10 Business Days', or less, 50% of the total price for cancelled Professional Services;
(c) if notice of 5 Business Days' or less, 70% of the total price for cancelled Professional Services; or
(d) 100% of the total price for the cancelled Professional Services if You cancel within 24 hours of the time the Professional Services were due to start.
5 YOUR OBLIGATIONS
5.1 You agree to:
5.1.1 co-operate with Us in all matters relating to the implementation of the Subscription Apps including those matters identified in the Statement of Work as being Your responsibility;
5.1.2 appoint an Authorised Representative to liaise with Us and ensure that all the set-up and configuration is completed and provide all the appropriate information necessary to deliver the Services;
5.1.3 provide in a timely manner such access to Your premises, data and networks, such information as We may request, and access to such other facilities as We notify You from time to time, and not less than 1 week before any attendance on Your premises;
5.1.4 ensure that all information provided to Us about your data and/or network is accurate in all material respects;
5.1.5 provide in a timely manner all such consents and/or permissions as may be required to enable Us to undertake any work on Your systems or at Your premises;
5.1.6 ensure that Your network and systems comply with the relevant specifications provided by Us to access and use the Subscription Services, in particular You acknowledge that You are solely responsible for the purchase and management of any hardware or consumables required to support the Subscription Services and are solely responsible for monitoring performance;
5.1.7 ensure that all Your Authorised Users use the Subscription Services and Documentation in accordance with the these Conditions, and acknowledge that You are responsible for all consequences of any breach of these terms by an Authorised User; and
5.1.8 ensure that You continually update and operate the Subscription Service to the latest version we have made available;
5.1.9 define all user procedures necessary to ensure a successful roll out following training, and for disseminating training to users after project implementation;
5.1.10 take ownership of the project during the deploy and support phase; and
5.1.11 notify Us prior to updating Your operating software, and not update Your operating system to a version that is not compatible with the Subscription Service.
5.2 If Our performance of Our obligations under the Contract is prevented or delayed by any act or omission of You or Your agents, sub-contractors or employees, You shall allow Us a reasonable extension to complete any services and shall be liable to pay to Us on demand all reasonable costs, charges or losses sustained or incurred by Us (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Us confirming such costs, charges and losses to You in writing.
6 OUR OBLIGATIONS TO YOU
6.1 We shall use reasonable efforts to manage and complete the provision of the Services and deliver any deliverables to You in accordance in all material respects with the Order Form and the relevant Statement of Work.
6.2 We shall use reasonable endeavours to meet the performance dates specified in the Order Form and/or Statement of Work, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
6.3 We shall appoint a Customer Services Manager to perform a client liaison role in order to assist Us to provide the Services to You in accordance with the agreed Statement of Work, and You acknowledge that We may change the Customer Services Manager during the term. Your Client Services Manager is named within Your Order Form, or as agreed from time to time.
6.4 We will ensure that all Our personnel engaged in delivering the Services comply with the health and safety procedures and all other policies that you provide to Us and attach to the Statement of Work.
7.1 We hereby grant to You, and your Authorised Users, for the Subscription Term, a non-exclusive, non-transferable, limited right and licence to access and use, solely for Your internal business purposes the Subscription Apps identified in the Order Form, and/or Statement of Work as applicable together with the Documentation.
7.2 In relation to the Authorised Users, You undertake that:
7.2.1 the maximum number of Authorised Users permitted to use the Subscription Services shall not exceed the number specified in the Order Form;
7.2.2 each Authorised User shall keep a secure password for his use of the Subscription Services, which shall be regularly changed and kept confidential;
7.2.3 shall maintain an up to date list of current Authorised Users and make such list available to Us on reasonable notice;
7.2.4 We shall be permitted to audit Your use of the Subscription Services to ensure compliance with the terms of the Contract;
7.2.5 You will support the disabling of any Authorised User's account or password in the event of any unauthorised used, or where the individual has left your employment or engagement
7.3 You warrant and undertake that neither You, nor any of Your Authorised Users shall access, store, distribute or transmit any Viruses or any material during the course of Your use of the Subscription Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, discriminatory and You acknowledge that We reserve the right, without liability or prejudice to Our other rights, to disable Your access to any material that breaches the provisions of this clause.
7.4 You may from time to time during the Subscription Term purchase additional user subscriptions to enable additional Authorised Users to access and use the Subscription Services, in accordance with these Terms, by requesting an additional Order Form and paying an additional charge.
8 CHARGES AND PAYMENT
8.1 Clause 8.2 applies to the Subscription Fees; clause 8.3 shall apply if the Professional Services are to be provided on a time-and-materials basis and clause 8.4 shall apply if the Professional Services are to be provided for a fixed price.
8.2 In consideration of the grant of the licence to use the Subscription Services, You shall pay the Subscription Fees in advance, in accordance with the payment details set out in the Order Form. The first payment shall be due on the Subscription Start Date, and where the Subscription Fee is paid monthly, and the Subscription Start Date falls part way through a calendar month, the first payment shall be pro-rata for the first calendar month, and subsequent invoices shall fall due for payment on the 1st of each calendar month.
Professional Service Fees
8.3 Where the Services are provided on a time-and-materials basis:
8.3.1 the charges payable for the Services shall be calculated:
(a) in accordance with Our standard daily fee rates as amended from time to time with no less than 60 days' notice, calculated on the basis of an eight hour day worked between 8.00 am and 6.00 pm on weekdays;
(b) at 1.5 times our standard daily fee rates as amended from time to time with no less than 60 days' notice, calculated pro rata on the basis of an eight hour day, and applies to any hours worked between 6.00 pm and 10.00 pm on weekdays and 8.00 am – 6.00 pm on Saturdays; and
(c) at 2 times our standard daily fee rates as amended from time to time with no less than 60 days' notice, pro rata for work at other times.
8.3.2 We shall ensure that all Our personnel maintain an appropriate time record; and
8.3.3 We shall invoice You monthly in arrears for Our charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 8 and the Statement of Work.
8.4 Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Order Form and/or Statement of Work as appropriate. The total price shall be paid to Us as set out in the Order Form/Statement of Work.
8.5 Where We are required to travel to Your site, You shall pay Our travel expenses on the basis of travel from Our head office to Your relevant site charged at Our standard rate of £0.55 per mile or as varied from time to time.
8.6 Where We are required to stay in overnight accommodation in order to provide the Services to You, You shall pay Our reasonable costs incurred for such stay, including but not limited to the cost of accommodation, breakfast and evening meals.
8.7 All prices and charges are stated exclusive of any VAT which will be payable at the then current rate.
8.8 You shall pay each invoice We submit to You in full, and in cleared funds, within 30 days of receipt. Time for payment shall be of the essence of the Contract.
8.9 The Charges specified in the Order Form exclude reasonable expenses that may be properly incurred in the provision of the Services, which shall be invoiced in addition.
8.10 All amounts due under this agreement shall be paid by You to Us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). We may, without prejudice to any other rights We may have, set off any liability of You to Us against any liability of Us to You.
8.11 Without prejudice to any other right or remedy that We may have, if You fail to pay Us on the due date We may:
8.11.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and/or
8.11.2 suspend all Services until payment has been made in full.
8.12 All payments payable to Us under the Contract shall become due immediately on termination of the Contract. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights and all other rights in the Subscription Services, the Documentation and the Deliverables shall be owned by Us or our licensors. Any and all enhancements, modifications, corrections and derivative works that are made to the Services, including the Deliverables and Documentation, will be owned by Us or our licensors. Save as set out in these Conditions, you shall not acquire any rights or ownership of the Subscription Services, the Documentation or the Deliverables.
9.2 You warrant that you are the owner or licensor of all Customer Data that is input into the Subscription Service, and You grant to us a licence to use and process the Customer Data for the purpose of providing the Subscription Services. To the extent that any Professional Services incorporates the use of your logos, branding or trade marks into the Deliverables, You grant to Us a licence to use the same for the sole purpose of providing the Services as contemplated by these Conditions.
9.3 You shall not:
9.3.1 decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Subscription Apps or disclose any of the foregoing;
9.3.2 encumber, transfer, manufacture, distribute, sell, sublicence, assign, provide, lease, lend use for timesharing or service bureau purpose, or otherwise use (except as expressly provided herein) the Service, Subscription Apps or Documentation;
9.3.3 copy, modify, adapt, translate, incorporate into or with other software or create a derivative work of any part of the Services, Subscriptions Apps or Documentation except as expressly permitted herein;
9.3.4 attempt to circumvent any user limits, timing or use restrictions that are built into the Subscription Services
9.4 Subject to clause 13.2 We shall defend You against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that:
9.4.1 We are given prompt notice of any such claim;
9.4.2 You provide Us with reasonable co-operation in the defence and settlement of such claim, and You give Us sole authority to defend or settle the claim.
9.5 In the defence or settlement of any claim, We may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice without any additional liability or obligation to pay liquidated damages or other additional costs to You.
9.6 In no event shall We be liable to You to the extent that the alleged infringement is based on a modification of the Services by anyone other than Us, or any Authorised Users use of the Services in a manner contrary to the instructions given by Us or continued use of the Services after notice of any alleged or actual infringement.
9.7 The foregoing provisions state Your sole and exclusive rights and remedies, and Our entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10.1 You shall own all rights, title and interest in and to all of the Customer Data, and You acknowledge and agree that you have sole legal responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
10.2 We shall follow the data backup and archiving procedures for the Customer Data set out in the Documentation, and acknowledge that we may amend this from time to time. In the event that Your Customer Data is lost or damaged, You acknowledge that our sole obligation and Your exclusive remedy is for Us to use our reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up that We have made. You acknowledge that We are not responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party unless such third party is a sub-contractor of Ours.
10.3 We shall at all times comply with the Data Protection Act 1998 (Data Protection Legislation) in the performance of Our obligations under the Contract. Where We are processing personal data as a processor on Your behalf, We shall:
10.3.1 only process such personal data in accordance with any instructions given by You;
10.3.2 take appropriate technical and organisational measures to protect the personal data from any unauthorised or unlawful processing, or its accidental loss, damage or destruction;
10.3.3 take reasonable steps to ensure the reliability of those individuals accessing such personal data, and ensure that they are aware of its confidential nature.
10.4 You acknowledge that We are reliant on You for direction as to the extent to which We are entitled to use and process personal data. Consequently, We will not be liable for any claim brought by a data subject arising from any action or omission by Us, to the extent that such action or omission resulted directly from Your instructions.
10.5 You acknowledge that:
10.5.1 You undertake to ensure that You have obtained all necessary consents or permissions to enable Our processing of any personal data through the Subscription Services as envisaged in the Contract; and
10.5.2 Your Customer Data, including any personal data, may be transferred or stored outside the EEA in order to carry out the Subscription Services or Our obligations under the Contract.
11.1 Each party shall
11.1.1 maintain as confidential and shall not copy, use or disclose any Confidential Information to any third party, (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under these Conditions, and who have been advised of the obligation of confidentiality hereunder);
11.1.2 protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorised, negligent or inadvertent use, disclosure or publication thereof; and
11.1.3 only use Confidential Information for the performance of the Contract and not for any other use or purpose.
11.2 Breach of these provisions may cause irreparable harm and damage. Thus in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorised use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this clause by the recipient or its affiliates, employees, third party service providers or any other related party.
11.3 Confidential Information shall not include information that
11.3.1 is already known prior to the disclosure by the owning party;
11.3.2 is or becomes publicly known through no breach of the Contract;
11.3.3 is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development;
11.3.4 is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or
11.3.5 the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information
11.4 You agree to participate in a press release following the execution of this these Conditions naming You as Our customer, and give permission for your name to be used in sales materials and user literature, which references Our customers generally. You shall also make reasonable efforts to, upon Our prior request, serve as a reference account and to participate in case studies and other promotional activity.
12.1 We represent and warrant that
12.1.1 the Subscription Service will substantially conform to the Documentation during the Subscription Period; and
12.1.2 the Professional Services will be performed with reasonable skill and care.
12.2 If you notify Us in writing within 5 Business Days' of any failure of the Professional Services our sole obligation to You and You sole remedy is the re-performance of the affected Professional Services to correct the defect or non-compliance.
12.3 If You notify Us in writing of a nonconformity of the Subscription Service during the Subscription Period, We will, at our option and expense,
12.3.1 correct any nonconformities in the Subscription Service that cause that Subscription Service to fail to conform to the Documentation , or
12.3.2 provide to You a pro rata refund of any prepaid but unutilised Subscription Fees applicable to the non-conforming service where a material nonconformity cannot be corrected.
12.4 The limited warranty set forth in this clause shall be void if the nonconformity is caused by
12.4.1 the use or operation of the Subscription Service with an application or in an environment other than that recommended in writing by Us;
12.4.2 modifications to or customisations of the Subscription Service without Our express written authorisation;
12.4.3 accident, disaster or event of force majeure;
12.4.4 misuse, fault or negligence of or by You, your employees or agents;
12.4.5 use of the Subscription Service in a manner for which it was not designed;
12.4.6 causes external to the Service such as, but not limited to, power failure or electrical power surges.
12.5 You acknowledge that:
12.5.1 We do not warrant that Your use of the Subscription Services will be uninterrupted or error free or that the Subscription Services or Documentation, Professional Services, and/or any information obtained by You through the Services will meet your requirements;
12.5.2 We are not responsible for any delays, delivery failures or other losses or damages resulting from the transfer of data over the internet, and that the Services are subject to limitations, delays and other problems inherent in the use of communications facilities.
12.6 The warranty and remedies set out in this clause 12 represent Our sole warranty in relation to the Subscription Services, and Your sole remedy in the event of breach of this warranty. Except as expressly stated in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract, including but not limited to warranties of non-infringement, merchantability and fitness for a particular purpose. Any demonstration licences are made available on an "as is" basis only without any warranties or indemnities of any kind.
13.1 Nothing in these Conditions excludes Our liability for death or personal injury caused by Our negligence or for fraud or fraudulent misrepresentation.
13.2 Our total liability to You for all claims arising under or related to the provision of the Services and or these Terms and the Contract whether in contract, tort or otherwise shall not exceed the total amount of fees payable to Us under the Contract in the 12 months prior to the claim being made. Notwithstanding the foregoing in no event will we be liable to You for damages for loss of data, lost profits or any indirect, special, incidental or consequential damages arising out of this Contract even if We have been advised of the possibility of such damages or are negligent.
13.3 You shall defend, indemnify and hold Us harmless 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 Your Use, or any Authorised Users use of the Services.
14 TERM AND RENEWAL
14.1 The Contract is effective from the Effective Date and will continue until the later of (i) termination of this Contract in accordance with this clause 14; (ii) the expiry of the Subscription Term; or (iii) completion of the Services.
14.2 The licence to use the Subscription App will continue for the Initial Term, and thereafter shall automatically renew on a monthly or annual basis or otherwise (as specified in the Order Form/Statement of Work as applicable) (Subscription Term). You may cancel the Subscription App and your licence to use the Services:
14.2.1 in the case of a monthly subscription on giving 30 days notice to expire at the end of a month after the Initial Term;
14.2.2 in the case of an annual subscription on giving not less than 90 days notice to terminate to expire at the end of the Initial Term or any subsequent renewal term.
14.3 Without prejudice to any other rights or remedies to which We may be entitled, We may terminate the Contract immediately on notice without liability to You if:
14.3.1 You fail to pay any amount due under the Contract on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
14.3.2 You commit a material breach of any other term of the Contract which is irremediable or (if such breach is remediable) You fail to remedy that breach within a period of fourteen (14) days after being notified in writing to do so
14.3.3 You repeatedly breach any of these Terms or any other term of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with You having the intention or ability to give effect to the terms of the Contract;
14.3.4 You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or You admit inability to pay Your debts or are deemed unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986;
14.3.5 You cease, or intend to cease the whole or a substantive part of your business activities; or
14.3.6 You undergo a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
14.4 Without prejudice to any other rights or remedies to which You may be entitled, You may terminate the Contract on 30 days' notice without liability to Us if:
14.4.1 We commit a material breach of any other term of these Conditions which is irremediable or (if such breach is remediable) We fail to remedy that breach within a period of 30 days after being notified in writing to do so;
14.4.2 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with Our winding up other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or Our solvent reconstruction.
14.5 Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14.6 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of either party that have accrued up to the date of termination, including the right to claim damages in respect of a breach of the Contract existing at or before the date of termination
15 GENERAL TERMS
15.1 Neither party shall directly or indirectly solicit, employ or engage any employee of the other party with whom the non-employing party came into contact through the performance of the Contract during the period such employee was engaged in the performance of the Contract and for one (1) year after such engagement. If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable. Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under the Contract.
15.2 No variation of the Contract shall have effect unless it is in writing and signed by the parties or their authorised representatives.
15.3 These Terms are binding on, and shall apply for the benefit of, the parties and their respective successors in title and permitted assigns. You may not, without Our prior written approval, assign, charge or otherwise dispose of all or any part of the benefit of the Contract or sub-contract any or all of Your obligations under it. We may assign, charge, novate or otherwise dispose of any or all of Our rights under the Contract and/or sub-contract any or all of its obligations under the Contract to, or novate the Contract in favour of, any third party on notice but without the need for prior consent.
15.4 This Contract contains the entire agreement of the parties, and supersedes any previous agreement, arrangement or understanding (whether oral or written) between the parties, in relation to the Services. Each party acknowledges that, in entering into the Contract, it is not relying on any representation or other assurance except as expressly set out or referred to in the Contract, provided that nothing in the Contract shall limit or exclude any liability for fraud.
15.5 No breach of any provision of the Contract shall be waived or discharged except with the express written consent of the parties. No failure to exercise or delay in exercising any right or remedy under the Contract shall operate as a waiver of that or any other right or remedy.
15.6 If a provision of the Contract is, becomes or is found to be illegal, invalid or unenforceable (in whole or in part), the legality, validity and enforceability of the remainder of the Contract shall not be affected.
15.7 Nothing in the Contract constitutes a partnership, joint venture, relationship of agency or contract of employment between the parties.
15.8 Any notice given to a party under or in connection with this contract will be in writing and will be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or by email to Our Client Services Manager or Your Authorised Representative as appropriate, to the address specified in the Order Form and with a copy of the notice sent by first class business post. Any notice will be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; if sent by email, one Business Day after transmission. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.9 A person who is not a party to the Contract will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of the Contract.
15.10 We shall not in any circumstances have any liability to You under the Contract if We are prevented from, or delayed in, performing Our obligations under the Contract or from carrying on Our business by acts, events, omissions or accidents beyond Our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
15.11 The Order Form or Statement or Work may be signed in counterparts, with each counterpart once signed forming part of the whole Contract.
16 GOVERNING LAW AND JURISDICTION
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
VERSION 1 02.02.2017
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