Infrastructure as a service (IaaS) agreement
Infrastructure as a service (IaaS) agreement

The following TMT precedent provides comprehensive and up to date legal information covering:

  • Infrastructure as a service (IaaS) agreement
  • Background
  • 1 Definitions
  • 2 Interpretation
  • 3 Commencement and Term
  • 4 Provision of the Services
  • 5 Exclusions from the Services
  • 6 Changes to the Services
  • 7 Misuse of the Cloud Services
  • 8 Fees
  • More...

IP COMPLETION DAY: 11pm (GMT) on 31 December 2020 marks the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for TMT?

This Agreement is made on [insert date]

Parties

  1. 1

    [insert supplier name] a company incorporated in England and Wales whose registered number is [insert company number] and whose registered office is at [insert registered office] (Supplier); and

  1. 2

    [insert customer name] a company incorporated in England and Wales whose registered number is [insert company number] and whose registered office is at [insert registered office] (Customer),

(each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties).

Background

    1. (A)

      The Supplier hosts and manages various facilities and provides various services as more specifically described in this Agreement and which the Customer wishes to use for itself and its Authorised Users.

    1. (B)

      The Customer by its Authorised Users will be able to use these facilities and services by interacting with them remotely over the internet or

  1. by means of its own communications facilities.

  1. (C)

    1. The Supplier wishes to provide these facilities and services and the Customer wishes to pay for the same on the terms of this Agreement.

The parties agree:

    1. 1

      Definitions

      1. 1.1

        In this Agreement:

        Authorised Users

        1. means those employees (including for this purpose only, individual third party contractors used alongside its regular workforce) of the Customer designated by the Customer on the Order Form as requiring access to the Cloud Services;

        Business Day

        1. means a day other than a Saturday, Sunday or bank or public holiday in England;

        Change Control Procedure

        1. means the procedure set out in Schedule 7;

        Cloud Services

        1. means those specific services [insert how these are distinguished eg identified as cloud services that are] selected by the Customer on the Order Form for provision by the Supplier under this Agreement as they are more fully described in Schedule 2 and shall include all modifications, updates and extensions of those services made in accordance with the terms of this Agreement;

        Cloud Services Conditions

        1. means the technical and other conditions for the Supplier’s supply of the Cloud Services and the conditions of the Customer’s access to, receipt of and use of them as more fully described in Schedule 4;

        Commencement Date

        1. means the date specified in the Order Form or, if there is no date specified there, then the Commencement Date shall be the date given at the head of this Agreement or, if earlier, the date on which the first Services are provided by the Supplier to the Customer;

        Confidential Information

        1. means any and all confidential information (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including without limitation information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organisation associated with that party;

        Consumer Prices Index

        1. means the Consumer Prices Index as published by the UK Office for National Statistics;

        Customer Data

        1. means [all data and software, which are provided to the Supplier or uploaded or hosted on any part of any Services by the Customer or by any Authorised User];

        Data Protection Losses

        1. has the meaning given in Schedule 9;

        Fees

        1. means those fees which are set out as payable by the Customer on the Order Form and may comprise one-off charges or recurring charges;

        Force Majeure

        1. means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock-outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include lack of funds;

        Intellectual Property Rights

        1. means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:

          1. (a)

            whether registered or not;

          2. (b)

            including any applications to protect or register such rights;

          3. (c)

            including all renewals and extensions of such rights or applications;

          4. (d)

            whether vested, contingent or future; and

          5. (e)

            wherever existing;

        Malware

        1. means any code or device intended to interfere with or having the effect of interfering adversely with, the operation of any hardware or software, including any bugs, worms, logic bombs, trojan horses or any other such programs;

        Network and Connection Conditions

        1. means those conditions set out in Schedule 5;

        Operational Change

        1. means:

          1. (a)

            the application of any software fix or patch, update, upgrade and/or service pack generally released by the relevant software owner or licensor;

          2. (b)

            the application of any software fix or patch, update, upgrade and/or service pack necessary for the secure, lawful or otherwise proper functioning of the Services (or any part); and/or

          3. (c)

            any modification in the Supplier’s operational, technical, security or other means of delivering the Services which, when implemented, will not cause any alteration in the Fees or have any directly adverse effect on the Customer’s receipt or use of the Services or conflict with Schedule 9;

        Order Form

        1. means the order form attached as Schedule 1;

        Policies

        1. means the Cloud Services Conditions, the Network and Connection Conditions and the Security Procedures;

        Protected Data

        1. has the meaning given in Schedule 9;

        Security Procedures

        1. means those procedures set out in Schedule 6;

        Service Levels

        1. means those service levels set out in Schedule 2;

        Services

        1. means the Cloud Services and the Support Services;

        Supplier Indemnified Person

        1. means:

          1. (a)

            the Supplier;

          2. (b)

            each direct and indirect sub-contractor of the Supplier; and

          3. (c)

            the officers, directors, employees, agents, successors, and assignees of the Supplier or any of the Supplier’s direct or indirect sub-contractors;

        Supplier’s Standard Pricing Terms

        1. means the Supplier’s standard pricing terms for any service or activity, as amended by the Supplier from time to time[, and as at the date of this Agreement the latest version is available at [Insert URL]];

        Support Services

        1. means those specific services [insert how these are distinguished eg identified as support services that are] selected by the Customer on the Order Form for provision by the Supplier under this Agreement as they are more fully described in Schedule 3, and shall include all modifications, updates and extensions of such Support Services made in accordance with the terms of this Agreement; and

        Term

        1. means the period of [three] years starting from the Commencement Date together with any period or periods of automatic renewal provided for in clause 3.

    1. 2

      Interpretation

      1. 2.1

        In this Agreement:

        1. 2.1.1

          a reference to this Agreement includes its schedules, appendices and annexes (if any);

        1. 2.1.2

          a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

        1. 2.1.3

          a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

        1. 2.1.4

          a reference to a gender includes each other gender;

        1. 2.1.5

          words in the singular include the plural and vice versa;

        1. 2.1.6

          any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

        1. 2.1.7

          the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and

        1. 2.1.8

          a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation.

    1. 3

      Commencement and Term

      1. 3.1

        This Agreement shall commence on the Commencement Date and shall continue throughout the Term unless before the end of the Term it is terminated in accordance with clause 15 or otherwise in accordance with this Agreement or is earlier terminated by agreement between the parties.

      1. 3.2

        At the end of the Term, this Agreement shall automatically renew without the requirement for notice by either party for successive periods each of [12] months’ duration, unless either party serves a written notice on the other party at least [90] days before the end of the then current Term requesting termination of this Agreement, in which case this Agreement shall terminate at the end of the then-current Term.

      1. 3.3

        The terms of this Agreement shall also apply to any additional or changed Services agreed by the parties in the course of the Term, and shall apply to any renewal or extension of the Term.

    1. 4

      Provision of the Services

      1. 4.1

        The Supplier shall make available the:

        1. 4.1.1

          Cloud Services as set out in the Order Form; and

        1. 4.1.2

          Support Services,

        from the Commencement Date for the duration of the Term subject to the terms of this Agreement.

      1. 4.2

        The Customer may grant only the Authorised Users access to the Cloud Services. The Customer may at any time during the Term designate in writing further individuals in addition to those identified on the Order Form as Authorised Users subject to [insert, eg the payment of any additional Fees in accordance with the rates specified on the Order Form]. The Customer is responsible for ensuring compliance by the Authorised Users with the provisions of this Agreement.

      1. 4.3

        The Supplier shall [use its reasonable endeavours to] comply with the Service Levels subject to the other provisions of this Agreement.

      1. 4.4

        The Customer shall at all times during the Term comply with Policies.

      1. 4.5

        The Supplier may, at any time and without notice, temporarily discontinue or modify the Cloud Services or any part of them where this is necessary in the Supplier’s sole discretion for the purpose of making modifications to the design, specifications, network connectivity or method of operation of the Cloud Services in order to maintain their compliance with current security or other technical requirements or standards.

      1. 4.6

        In connection with any period of suspension or temporary discontinuance or modification of the Supplier’s provision of the Services permitted by the terms of this Agreement:

        1. 4.6.1

          no such period shall be taken into account in calculating the Service Levels;

        1. 4.6.2

          the Supplier may delete or remove access to some or all of the Customer Data stored on the impacted Services;

        1. 4.6.3

          the Supplier shall provide as much notice as is reasonably possible taking into account the urgency of the situation, its potential effect on the Supplier’s ability to continue providing services to its customers generally and the need to maintain a safe and secure environment;

        1. 4.6.4

          the Supplier shall not be liable for any loss or damage to the Customer including any liability it may incur to third parties; and

        1. 4.6.5

          the Supplier shall be entitled to charge and be paid all Fees until the end of the period of suspension, discontinuance or modification.

      1. 4.7

        Without prejudice to the foregoing specific rights to suspend or temporarily modify or discontinue the Cloud Services, the Supplier shall not be responsible or accept any liability for delays, failures or loss of or damage to data arising from the transfer of data over the internet or other communications networks or facilities other than those networks or facilities which are supplied by the Supplier as part of the Cloud Services or which are under the Supplier’s direct control or in its possession.

      1. 4.8

        The Customer acknowledges that the Cloud Services are subject to the limitations, delays and other technical issues which are inherent in the use of third party networks or communications facilities including the internet.

    1. 5

      Exclusions from the Services

      1. 5.1

        The Supplier shall not be responsible for and the Customer shall accept sole responsibility for the following matters:

        1. 5.1.1

          supervision of the Authorised Users and ensuring compliance by each of them with the Policies;

        1. 5.1.2

          the inputting and maintenance of the Customer Data and (except as otherwise expressly agreed by the parties) its security and integrity;

        1. 5.1.3

          the taking of back ups of the Customer Data or any other data (and the Customer acknowledges that the Services do not include any dedicated data back up or disaster recovery facilities and that the Customer should ensure it at all times maintains backups of all Customer Data);

        1. 5.1.4

          the safety and integrity of any backups of the Customer Data; and

        1. 5.1.5

          except as otherwise agreed under this Agreement, extracting, transferring or recovering any data (including any Customer Data) whether during or after the Term (or providing any assistance with any such activities).

      1. 5.2

        The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s business(es). The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its and its Authorised User’s needs) and extracts all necessary Customer Data from all Services prior to the termination or expiry of this Agreement or the cessation or suspension of any of the Services.

      1. 5.3

        The Supplier shall provide the Services in accordance with any laws applicable in the United Kingdom to the extent that they are general in nature or apply to a supply of services that are the same as or similar to the Services.

      1. 5.4

        The Customer shall be solely responsible for compliance with all laws applicable to it in its access to, receipt of and use made of the Services and shall further be solely responsible for compliance with all published policies, guidelines or industry codes of practice applicable to it but not having the force of law.

      1. 5.5

        Except to the extent the Supplier has direct obligations under applicable laws, the Customer acknowledges that the Supplier has no control over any Customer Data hosted as part of the provision of the Services and might not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Services) complies with all applicable laws and Intellectual Property Rights.

      1. 5.6

        The Supplier routinely undertakes regular backups of the Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make the Supplier responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, the Supplier shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.

      1. 5.7

        Apart from the software expressly set out in the Order Form, the Supplier is not responsible for the provision of any further software, middleware or other platform whatsoever, the provision of which is entirely the Customer’s responsibility.

    1. 6

      Changes to the Services

      1. 6.1

        The Supplier may by notice in writing make any changes to the Services which are necessary to comply with any law applicable anywhere in the United Kingdom or with any published policies, guidelines or codes of practice not having the force of law but which represent good practice.

      1. 6.2

        Where the Supplier would be required to make a change to the Services consequent on a change in law [applicable anywhere in the United Kingdom] which comes into force at any time after the Commencement Date (including those laws referred to in Schedule 9), then the Supplier may instead terminate this Agreement by notice in writing of not less than 30 days, in which case this Agreement shall terminate at the end of that 30 day period.

      1. 6.3

        The Supplier may at any time change the Policies or any part of them where this is desirable in the Supplier’s sole discretion to comply with good practice and shall provide as much notice as reasonably practicable to the Customer save in the case of changes to the Security Procedures, where in cases of urgency, the Supplier may introduce modifications or additional procedures where this is required to maintain a secure environment for the provision of the Services.

      1. 6.4

        The Supplier may at any time and without prior notice to the Customer and without complying with the Change Control Procedure implement any Operational Change provided that neither the work of implementing the Operational Change nor the consequences of the Operational Change will have a directly adverse effect on the Customer’s access to, receipt of or use of the Services. The Supplier may make any consequential alterations it considers necessary in its sole discretion to the Service Levels following any Operational Change and shall give the Customer written notice of such alterations as soon as reasonably practicable.

      1. 6.5

        Subject to clause 4.5 and clauses 6.1 to 6.4 (inclusive) and Schedule 9, any:

        1. 6.5.1

          modifications to the terms of this Agreement;

        1. 6.5.2

          modifications in the Services themselves; and

        1. 6.5.3

          provision of additional Services,

        shall require compliance with the Change Control Procedure. Changes made pursuant to clause 4.5 and clauses 6.1 to 6.4 (inclusive) and/or paragraph 12 of Schedule 9 shall not require compliance with the Change Control Procedure.

    1. 7

      Misuse of the Cloud Services

      1. 7.1

        The Customer is responsible for ensuring compliance by the Authorised Users with the terms of this Agreement (including the Policies) and shall be fully liable for the acts or omissions of the Authorised Users as if they were its own.

      1. 7.2

        The Customer shall be responsible for any acts of unauthorised access to the Services where such access is gained by unauthorised use of an Authorised User’s account. The Customer shall inform the Supplier immediately on becoming aware of any unauthorised access, whether through an Authorised User’s account or otherwise.

      1. 7.3

        The Customer shall not use or allow the Services to be used in order to license, sell, rent, transfer, host, outsource or permit timesharing or the provision of service bureau facilities to any third party based on the Services.

      1. 7.4

        The Customer shall comply with any law applicable to it in its access to, receipt of or use of the Services.

      1. 7.5

        The Customer may not perform any security testing of the Services or of any infrastructure or facilities whatsoever used to provide the Services, including network discovery, port/service identification, vulnerability scanning, password cracking, remote access testing or penetration testing.

      1. 7.6

        If the Customer or any Authorised User fails at any time to comply with any of the Policies or clauses [7.3 to 7.5] (inclusive) in any, including a trivial respect, the Supplier reserves the right without prior notice to suspend the Customer’s (and Authorised Users’) access to or use of the Services either completely or to the extent the Supplier in its sole discretion deems necessary to ensure a safe and secure manner of providing its services to its customers in general. The Supplier shall be entitled to maintain the suspension until the Customer is able to remedy its non-compliance with the Policies and clauses [7.3 to 7.5] (inclusive) and to demonstrate its future ability to comply with the Policies and such clauses to the Supplier’s reasonable satisfaction.

      1. 7.7

        The Customer shall not use the Services, or allow any Authorised User to use the Services, to create, store, access, transfer to any third party or otherwise distribute any Malware or any other material which:

        1. 7.7.1

          is unlawful;

        1. 7.7.2

          fails to comply with any Policy;

        1. 7.7.3

          is in breach of any of the Supplier’s obligations under Schedule 9;

        1. 7.7.4

          is or contains material which is harmful, obscene, defamatory, infringes any third party’s rights including any third party’s Intellectual Property Rights;

        1. 7.7.5

          is or contains material which is of a harassing or offensive nature;

        1. 7.7.6

          contains sexually explicit or other offensive material;

        1. 7.7.7

          promotes the use of unlawful violence against a person or property; or

        1. 7.7.8

          is or contains material which is discriminatory based on race, origin, belief, sexual orientation, physical or mental disability, age or any other illegal category.

      1. 7.8

        In the event of any breach (or alleged breach) of clause 7.7, the Supplier may without prior notice:

        1. 7.8.1

          disable or suspend access to or use of the Services or to any part of them that allows access to or use of any material which is causing (or is alleged to cause) a breach of clause 7.7; and/or

        1. 7.8.2

          delete any Customer Data that is causing (or is alleged to cause) a breach of clause 7.7,

        clause 4.6 shall apply to such disabling of access as it applies in the case of any suspension or temporary discontinuance or modification of the Services under clause 4.6.

      1. 7.9

        It is the Customer’s responsibility to understand if software within the Customer Data includes programs (including third party programs) that might access the Services or Customer Data. The Supplier has no responsibility (howsoever arising, including in negligence) to prevent any such access nor for the consequences of such access (including the deletion or disclosure of Customer Data, whether or not intended or authorised).

      1. 7.10

        The Customer shall indemnify the Supplier against all claims, losses, costs or expenses (including all Data Protection Losses) incurred by the Supplier in consequence of any non-compliance by the Customer with the provisions in this clause 7, any of the provisions of Schedule 9 or with the Policies.

    1. 8

      Fees

      1. 8.1

        The Customer shall pay the Fees set out in the Order Form including:

        1. 8.1.1

          any one-off charges in respect of any agreed set-up activities or any additional licensing; and

        1. 8.1.2

          any recurring charges in respect of the provision of the Services.

      1. 8.2

        The Supplier may render an invoice for Fees at the following times:

        1. 8.2.1

          in respect of any one-off charges indicated on the Order Form, on the earlier of the Commencement Date or the time indicated on the Order Form for that charge; and

        1. 8.2.2

          in respect of any recurring charges in respect of the Services, monthly in advance as from the Commencement Date.

      1. 8.3

        Unless stated to the contrary on the Order Form, it is a condition of this Agreement that the Customer should pay for the first month’s Fees in advance on the Commencement Date.

      1. 8.4

        Unless stated to the contrary, all Fees are exclusive of VAT or other charges imposed by law from time to time, and the Customer shall in addition pay such VAT and other charges at the rate and in the manner prescribed by law from time to time.

      1. 8.5

        The Supplier may increase the Fees with effect from the first anniversary of the Commencement Date provided it has given the Customer at least 30 days’ written notice. The Supplier may not increase the Fees by an amount greater than the percentage increase in the Consumer Prices Index over the 12 month period up to the time of giving written notice.

      1. 8.6

        Unless stated to the contrary, the Supplier shall raise invoices in pounds sterling and the Customer shall make full payment in pounds sterling without set-off or deduction within 30 days of the date of the invoice.

      1. 8.7

        Timely payment shall be of the essence and in addition to its other rights and remedies under the terms of this Agreement or at law, the Supplier may suspend any Services pending full payment. Clause 4.6 shall apply to such suspension as it applies in the case of any suspension or temporary discontinuance or modification of the Services under clause 4.6.

      1. 8.8

        If any sum is not paid by the due date for payment as set out above, the Supplier may charge interest on any outstanding balance at the rate of 4% per annum above the base rate of the [name of bank] such interest to accrue on a daily basis and to be compounded quarterly.

    1. 9

      Warranties

      1. 9.1

        Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

      1. 9.2

        The Supplier warrants to the Customer that:

        1. 9.2.1

          it has the right, power and authority to grant the Customer the rights set out in this Agreement and provide the Services;

        1. 9.2.2

          it will provide the Services using reasonable care and skill; and

        1. 9.2.3

          the access to, receipt of and use of the Services will not infringe the Intellectual Property Rights of any third party.

      1. 9.3

        The Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that it will meet the Customer’s specific requirements. The Supplier does not warrant that the Services are or will be interoperable with or capable of working in conjunction with any other software or hardware, for which the Customer takes full responsibility.

      1. 9.4

        The Customer warrants and represents to the Supplier that it has done such reasonable due diligence of the Services prior to the Commencement Date and takes sole responsibility for their suitability for its own intended purposes. The Customer acknowledges that the Supplier is making available to it a general service made available to its customers generally and that it is not making a bespoke service available specifically for the Customer’s individual requirements.

      1. 9.5

        Other than as set out in this Agreement all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.

    1. 10

      Data protection

      Each party shall comply with its respective obligations, and may exercise its respective rights and remedies, under Schedule 9.

    1. 11

      Systems monitoring

      The Supplier may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or the Supplier’s operations and for the purposes of the further development and improvement of the Supplier’s services, provided that such activities at all times comply with Schedule 9 and the Privacy Policy referred to therein.

    1. 12

      Intellectual Property Rights

      1. 12.1

        The Supplier or its licensors shall retain ownership of all Intellectual Property Rights in the Services [including [list or refer to any specific software]] and in any materials created by the Supplier (or anyone acting on its behalf) in the course of providing the Services, whether those materials are provided to the Customer or not. The Customer shall execute all such documents and do such things as the Supplier may consider necessary to give effect to this clause 12.1.

      1. 12.2

        The Customer shall retain ownership of all Intellectual Property Rights in the Customer Data.

      1. 12.3

        The Customer hereby grants the Supplier a non-exclusive, sub-licensable (including by multi-tier), worldwide, royalty-free licence to use, transmit, copy, install and otherwise utilise:

        1. 12.3.1

          the Customer Data; and

        1. 12.3.2

          any software, materials and data made available to the Supplier (or those acting on its behalf) by or on behalf of the Customer or any Authorised User,

        to the extent necessary to enable the Supplier to provide the Services and exercise its rights and perform its obligations under this Agreement.

      1. 12.4

        Each party shall comply with its respective obligations, and may exercise its respective rights and remedies in Schedule 8. The Customer shall comply with the licences set out in Schedule 8.

      1. 12.5

        Subject to clauses 12.7 and 14, the Supplier shall:

        1. 12.5.1

          defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services in accordance with this Agreement infringes any [copyright, database right or registered trade mark, registered design right or registered patent in the United Kingdom ](an IP Claim); and

        1. 12.5.2

          pay all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.

      1. 12.6

        The provisions of clause 12.5 shall be the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.

      1. 12.7

        The provisions of clause 12.5 shall not apply unless the Customer:

        1. 12.7.1

          promptly notifies the Supplier upon becoming aware of any actual or threatened IP Claim and provides full written particulars;

        1. 12.7.2

          makes no comment or admission and takes no action that may adversely affect the Supplier’s ability to defend or settle the IP Claim;

        1. 12.7.3

          provides all assistance reasonably required by the Supplier subject to the Supplier paying the Customer’s reasonable costs; and

        1. 12.7.4

          gives the Supplier sole authority to defend or settle the IP Claim as the Supplier considers appropriate.

      1. 12.8

        The Customer shall indemnify, keep indemnified and hold harmless the Supplier (on the Supplier’s own behalf on behalf of each Supplier Indemnified Person) from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it or by any Supplier Indemnified Person as a result of or in connection with any action, demand or claim that the transmission, receipt, copying, installation, use, possession or other utilisation of the Customer Data in accordance with this Agreement infringes the Intellectual Property Rights of any third party.

    1. 13

      Confidentiality

      1. 13.1

        Each party agrees that it may use the other party’s Confidential Information only in the exercise of its rights and performance of its obligations under this Agreement and that it shall not disclose the other party’s Confidential Information including all know­how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 13.

      1. 13.2

        Subject to clause 13.5, each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential Information in order to exercise the disclosing party’s rights or perform its obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 13 as if it were a party.

      1. 13.3

        Subject to clause 13.5, each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.

      1. 13.4

        [Each party shall indemnify the other from and against any losses, damages, liability, costs (including legal fees) and expenses which the other party may incur or suffer as a result of or arising from any breach of its obligations under this clause 13.]

      1. 13.5

        To the extent any Confidential Information is Protected Data, such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provision of Schedule 9.

    1. 14

      Liabilities

      1. 14.1

        Notwithstanding any provision in this Agreement, neither party excludes or limits any liability for:

        1. 14.1.1

          personal injury or death to the extent that results from the negligence of a party or any person for whom it is responsible at law;

        1. 14.1.2

          fraud or fraudulent misrepresentation;

        1. 14.1.3

          any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

        1. 14.1.4

          any other liability to the extent the same cannot be excluded or limited by law.

      1. 14.2

        Subject to clause 14.1, the Supplier shall not be liable to the Customer in respect of:

        1. 14.2.1

          any loss of profit, business, contracts, opportunity, goodwill, revenues, anticipated savings or similar loss, or any loss of use, destruction or corruption of software or data (including Customer Data), or any claims or losses by third parties (and in each case, whether these losses are direct, indirect, special or consequential); and/or

        1. 14.2.2

          any indirect, special or consequential loss or damage (whether for loss of profit or otherwise),

        of whatever nature and whether based on contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with this Agreement or any activities related to this Agreement.

      1. 14.3

        Subject to clauses 14.1 and 14.2, the Supplier’s maximum liability to the Customer for all and any claims of whatever nature and whether based on contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with this Agreement or any activities related to this Agreement shall be limited in any [12] month period starting with the Commencement Date to a sum equal to the Fees paid or payable by the Customer to the Supplier in that [12] month period.

      1. 14.4

        The Customer takes full responsibility and shall accept all liability in respect of the use it makes of the Services and the results it achieves from them.

    1. 15

      Termination

      1. 15.1

        Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

        1. 15.1.1

          the other party commits a material breach of this Agreement and such breach is not remediable;

        1. 15.1.2

          the other party commits a material breach of this Agreement which is not remedied within [30] days of receiving written notice of such breach; or

        1. 15.1.3

          the other party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within [30] days after the other party has received notification that the payment is overdue.

      1. 15.2

        Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:

        1. 15.2.1

          stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

        1. 15.2.2

          is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;

        1. 15.2.3

          becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;

        1. 15.2.4

          becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

        1. 15.2.5

          becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

        1. 15.2.6

          becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

        1. 15.2.7

          has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

        1. 15.2.8

          has a resolution passed for its winding-up;

        1. 15.2.9

          has a petition presented to any court for its winding-up or an application is made for an administration order, or any winding-up or administration order is made against it;

        1. 15.2.10

          is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [seven] days of that procedure being commenced;

        1. 15.2.11

          has a freezing order made against it;

        1. 15.2.12

          is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;

        1. 15.2.13

          is subject to any events or circumstances analogous to those in clauses 15.2.1 to 15.2.12 in any jurisdiction; or

        1. 15.2.14

          takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 15.2.1 to 15.2.13 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.

      1. 15.3

        The right of a party to terminate this Agreement pursuant to clause 15.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.

      1. 15.4

        The Customer may terminate this Agreement in accordance with paragraph 12.3 of Schedule 9.

      1. 15.5

        Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.

    1. 16

      Consequences of termination

      1. 16.1

        Upon termination or expiry of this Agreement for any reason:

        1. 16.1.1

          the obligation on the Supplier to provide any Services and any rights and licences granted by the Supplier under this Agreement shall immediately terminate (including, for the avoidance of doubt, any rights granted to Authorised Users to access the Cloud Services);

        1. 16.1.2

          the Customer shall immediately pay all sums outstanding to the Supplier; and

        1. 16.1.3

          each party shall return to the other party and make no further use of any materials, software or other items (excluding Customer Data, which is addressed in clause 16.4) whatsoever (or of any copies of them) belonging to the other party and/or provided by it pursuant to this Agreement.

      1. 16.2

        Termination or expiry of this Agreement for any reason is without prejudice to any rights or liabilities which have accrued prior to the date of termination.

      1. 16.3

        Termination or expiry of this Agreement will not affect those provisions which expressly or by necessary implication are intended to survive termination of this Agreement including clause 7 and clauses 10 to 14 (inclusive).

Related documents:

Popular documents