TERMS AND CONDITIONS FOR THE R&D TAX CREDIT REPORT SERVICE

This document sets out the terms and conditions that apply to the access and use of the Report Service by the Customer.

By using the Service, the Customer agrees to these Conditions (including the limitations of liability set out in clause 14). It is recommended that the Customer print and retain a copy of these Conditions for reference.

  1. INTERPRETATION

    1.1 In these Terms, the following definitions and rules of interpretation apply:

    Authorised Users means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 5;

    Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

    Conditions: these terms and conditions as amended from time to time in accordance with clause 16.2;

    Contract means the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions;

    Charges means the charges payable by the Customer for the use of the Services in accordance with clause 10;

    Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or clause 12.6.

    Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures are as defined in the Data Protection Legislation;

    Customer means the business that purchases the Services from the Supplier;

    Customer Data means the data inputted by the Customer and its Authorised Users (or, if applicable, by the Supplier on the Customer’s behalf) for the purpose of using the Services or facilitating the Customer’s use of the Services;

    Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

    Documentation means the documentation made available to the Customer by the Supplier, whether online via www.iconnections.co.uk or such other web address notified by the Supplier to the Customer from time to time or in other form, and which sets out a description of the Services and the user instructions for the Services;

    Eligible Spend means the Customer’s costs and expenditure in relation to research and development that are, or may be, relevant for any application for R&D Relief (and all information submitted by the Customer in connection with or ancillary to those costs and expenditure);

    HMRC means Her Majesty’s Revenue and Customs or any successor body to whom relevant responsibilities may be transferred;

    Mandatory Policies means the Customer’s [and the Portal Provider’s] policies as set out at www.iconnections.co.uk as amended by notification to the Customer from time to time;
    Normal Business Hours means [8.00 am to 6.00 pm] local UK time, each Business Day;

    Order means the Customer’s written offer to purchase the Services and containing the relevant scope and price of the Services;

    Platform means the web platform and any underlying technology made available by the Platform Provider on behalf of the Supplier;

    Platform Provider means Wobbegong Technology Limited (incorporated in England and Wales with company number 10754811) and any other provider of platform technology to the Supplier from time to time;

    Portal means the web pages, spreadsheets, databases or other data entry interfaces configured for access by the Customer in accordance with clause 3.1;

    R&D Relief means the scheme for Corporation Tax relief (for small, medium and large enterprises as applicable), through the assessment of relevant qualifying costs and if applicable tax credits as operated by HMRC;

    Report means the report provided by the Supplier through the Portal, based on the data concerning Eligible Spend submitted by the Customer, and which details the Customer’s potential eligibility for R&D Relief, as more particularly described in the Documentation;

    Services means the services provided by the Supplier under the Contract including the configuring of the Portal, provision of access to it to the Customer via the website www.iconnections.co.uk, and provision of the Report, as more particularly described in the Documentation, and any other services provided under the Contract by the Supplier;

    Software means the online software applications provided by the Supplier as part of the Services;

    Specification: the description or specification of the Services provided [in writing] by the Supplier to the Customer [OR contained in the Documentation];

    Supplier means SQW Group Limited, incorporated in England and Wales with company number 04947276;

    Support Services Policy means the Supplier’s policy for providing support in relation to the Services as set out in the Documentation;

    UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and

    Virus means 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 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.

    1.3 A reference to a statute or statutory provision is a reference to it as it is in force as updated or superseded from time to time, and includes all subordinate legislation under that statute or statutory provision from time to time.


  2. BASIS OF CONTRACT

    2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

    2.2 The Order will only be deemed to be accepted when the Supplier issues written acceptance of the Order (or, if sooner, when the Supplier grants access to the Customer to the Portal under clause 3.1) at which point and on which date the Contract shall come into existence. The Contract comprises the Order and these Conditions.

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

    2.4 Any quotation for the Services given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days.


  3. REPORTING PROCESS

    3.1 Once the Supplier has notified the Customer that it has configured the Portal to give access to the Customer’s Authorised Users, the Customer may input its Eligible Spend into the Portal. The Supplier shall use reasonable endeavours to configure the Service according to any timescale indicated in the Order, but time of performance is not of the essence.

    3.2 The Supplier shall then notify the Customer of an approximate range of R&D Relief that, on the basis of the data submitted by the Customer under clause 3.1, may be available to the Customer.

    3.3 The Customer may then (at its discretion) elect to commission, purchase and download the Report from the Portal.

    3.4 The Charges under clause 10 are only payable by the Customer in the event that the Customer purchases the Report under clause 3.3. No charges are payable if the Customer, on receipt of relevant information from the Supplier under clause 3.2, elects not to purchase the Report or to make further use of the Services.


  4. THE REPORT

    4.1 The Customer may store, copy, reproduce and modify the Report (including sharing it with its professional advisors) and otherwise use and adapt the Report in connection with the Customer’s assessment and claim for R&D Relief. The Customer is not permitted to alter or re-use the Report to create a style or template report, based on the Report, for any third party.

    4.2 The Customer is responsible for the accuracy of all Customer Data submitted to the Portal, and accordingly neither the Supplier, nor the Platform Provider, have any liability to the Customer for any matters in the Report arising out of inaccurate Customer Data. The Customer is further responsible for verifying all data, claims and statements in the Report by reference to the Customer’s actual Eligible Spend and other circumstances, and for the decision whether to submit, and the submission of, any claim to HMRC in relation to R&D Relief.

    4.3 The Supplier does not warrant or represent that the Customer has an eligibility for R&D Relief (nor as to the amount of any such R&D Relief), nor that the submission of the Report will result in a successful claim by the Customer for R&D Relief. The Service, and the Report, is provided by the Supplier as a tool to assist the Customer in its assessment of its position in respect of R&D Relief, and the responsibility for the submission of any claim to HMRC in respect of R&D Relief, including the relevance and accuracy of any data, claims or statements in such claim, is the responsibility of the Customer and its professional advisors.

    4.4 In the event that HMRC open any enquiry into any claim by the Customer in relation to R&D Relief (whether in connection with an inaccurate or fraudulent claim, or otherwise) the Customer is solely responsible in relation to such enquiry, and shall indemnify the Supplier and the Platform Provider in relation to any costs or losses incurred by those parties in relation to any such enquiry.


  5. AUTHORISED USERS

    5.1 Subject to the restrictions set out in this clause 5 and the other obligations in these Conditions, the Supplier grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation solely for the purposes of accessing the Portal for the purposes of submitting relevant Customer Data and commissioning the Report.

    5.2 In relation to the Authorised Users, the Customer undertakes that:

    (a) the maximum number of Authorised Users that it authorises to access the Portal and use the Services shall not exceed the number agreed with the Customer through the Portal;

    (b) each Authorised User shall keep a secure password for his access to the Portal and use of the Services, that such password shall be changed regularly and that each Authorised User shall keep his password confidential;

    (c) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;

    (d) it shall permit the Supplier or the Supplier’s designated auditor to audit the Customer’s use of the Services in order to establish the name and password of each Authorised User and the Customer’s compliance with these Conditions (any such audit to be conducted not more than once in relation to any one Report or entry of Eligible Spend, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business); and

    (e) if an audit under clause 5.2(d) reveals that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.

    5.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

    (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

    (b) facilitates illegal activity;

    (c) depicts sexually explicit images;

    (d) promotes unlawful violence;

    (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;

    (f) is otherwise illegal or causes damage or injury to any person or property; or

    (g) us otherwise contrary to any terms of use or terms of access that the Platform Provider requires the Customer to comply with in order to access the Platform,

    and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause and/or terminate the Customer’s access to the Portal altogether.

    5.4 The Customer shall not (without prejudice to clause 4.1):

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

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

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

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

    (c) use the Services and/or Documentation to provide services to third parties; or

    (d) subject to clause 16.7 (Assignment), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

    (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5; or

    (f) introduce or permit the introduction of, any Virus into the Supplier’s network and information systems or those of the Platform Provider.

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

    5.6 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.


  6. SERVICES

    6.1 The Supplier shall provide the Services and make available the Documentation to the Customer subject to the terms of the Contract.

    6.2 The Supplier shall use commercially reasonable endeavours to make the Portal available 24 hours a day, seven days a week, except for:

    (a) planned maintenance carried out during the maintenance window of [10.00 p.m. to 2.00 am UK time]; and

    (b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least [6] Normal Business Hours’ notice in advance.

    6.3 The Supplier will, as part of the Services [and at no additional cost to the Customer] provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in effect at the time that the Services are provided. The Supplier may provide such support directly or through the Portal Provider or other third party. [The Customer may purchase enhanced support services separately at the Supplier’s then current rates.]


  7. CUSTOMER DATA

    7.1 The Customer shall own all right, title and interest in and to the Customer Data shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

    7.2 The Customer agrees that the Supplier and/or the Platform Provider may create and publish reports that use the Customer Data (with other data) to analyse trends in spend by small and medium and large enterprises on research and development and relevant R&D Relief and which may include aggregated amounts. Any such reports or publications shall not contain any personal data of the Customer, nor any other information from which the Customer, or its relevant Eligible Spend, can be identified.

    7.3 The Supplier shall back up the Customer Data during the Report creation phase and will keep an archive copy of the Customer Data for a period of [12 months] from the date of the last submission of Customer Data by the Customer or, if later, the date of the Customer’s purchase of the Report. 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. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except the Platform Provider or any other third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 7.10).

    7.4 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at www.iconnections.co.uk or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

    7.5 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

    7.6 The parties acknowledge that:

    (a) if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation. In any such case, the personal data to be processed is limited to names of relevant contact persons in connection with the Customer and its Eligible Spend, which (if any) will be processed in connection with the generation of the Report and will be retained only for the duration of the data archive period referred to in clause 7.3;

    (b) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under the Contract.

    7.7 Without prejudice to the generality of clause 7.5, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to the Supplier for the duration and purposes of the Contract so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf.

    7.8 Without prejudice to the generality of clause 7.5, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

    (a) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

    (b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

    (i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

    (ii) the data subject has enforceable rights and effective legal remedies;

    (iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

    (iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

    (c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

    (d) notify the Customer without undue delay on becoming aware of a personal data breach;

    (e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and

    (f) maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the Company if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

    7.9 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

    7.10 The Customer consents to the Supplier appointing the Platform Provider as a third-party processor of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7 and in either case which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.

    7.11 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).


  8. SUPPLIER’S OBLIGATIONS

    8.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

    8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do 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 or, if such correction or substitution are not possible, refund the amount paid in relation to such non-conforming Services. Such correction, substitution or refund (as applicable) constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.

    8.3 The Supplier:

    (a) does not warrant that:

    (i) the Customer’s use of the Services will be uninterrupted or error-free; or

    (ii) that the Services, Documentation and/or the information obtained by the Customer through the Services (including the Report) will meet the Customer’s requirements.

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

    8.4 This Contract shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

    8.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.


  9. CUSTOMER’S OBLIGATIONS

    The Customer shall:

    (a) provide the Supplier with:

    (i) all necessary co-operation in relation to the Contract; and

    (ii) all necessary access to such information as may be required by the Supplier;

    in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

    (b) without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;

    (c) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

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

    (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 Contract, 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; and

    (g) be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing 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.


  10. CHARGES AND PAYMENT

    10.1 The Customer shall pay the Charges to the Supplier for the Services in accordance with this clause 10 and the Order.

    10.2 The Customer shall pay for the Report in accordance with the payment processes contained in the Portal. The Report will not be released to the Customer until payment has been received by the Supplier in cleared funds.

    10.3 For any additional Services, the Supplier shall invoice the Customer as agreed in each case and the Customer shall pay each invoice within [30 days] after the date of such invoice, in full and in cleared funds to a bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Contract.

    10.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

    10.5 If the Supplier has not received payment by the due date under clause 10.3, and without prejudice to any other rights and remedies of the Supplier:

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

    (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to [3]% over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

    10.6 All amounts and fees stated or referred to in the Contract are, subject to clause 14.3(b), non-cancellable and non-refundable.


  11. PROPRIETARY RIGHTS

    11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, the Software and the Documentation. Except as expressly stated herein (including under clause 4.1), the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Software or the Documentation.

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


  12. CONFIDENTIALITY AND COMPLIANCE WITH POLICIES

    12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:

    (a) is or becomes publicly known other than through any act or omission of the receiving party;

    (b) was in the other party’s lawful possession before the disclosure;

    (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

    (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

    12.2 Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party (except, however, that the Supplier may disclose Customer Data to the Platform Provider as required in the provision of the Services), or use the other’s Confidential Information for any purpose other than the implementation of the Contract.

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

    12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

    12.5 The Customer acknowledges that details of the Services and the results of any performance tests of the Services (and including any data or materials of the Platform Provider disclosed in the course of the Services) constitute the Supplier’s Confidential Information.

    12.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

    12.7 No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

    12.8 The above provisions of this clause 12 shall survive termination of the Contract, however arising.

    12.9 In performing its obligations under the Contract the Customer shall comply with the Mandatory Policies.


  13. INDEMNITY

    13.1 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 Services and/or Documentation, provided that:

    (a) the Customer is given prompt notice of any such claim;

    (b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

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

    13.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation (including the Report) in accordance with the Contract infringes any United Kingdom patent effective as of the date of the Contract, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

    (a) the Supplier is given prompt notice of any such claim;

    (b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

    (c) the Supplier is given sole authority to defend or settle the claim.

    13.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

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

    (a) a modification of the Services or Documentation or Report by anyone other than the Supplier; or

    (b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

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

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


  14. LIMITATION OF LIABILITY

    14.1 Except as expressly and specifically provided in the Contract:

    (a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation (including the Report) 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;

    (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 the Contract; and

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

    14.2 Nothing in the Contract 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.

    14.3 Subject to clause 14.1 and clause 14.2 (and without prejudice clause 8.2):

    (a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, loss of savings, 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 the Contract; and

    (b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 125% of the amount of the Charges paid (and provided that, where the Customer elects under clause 3.3 not to purchase the Report and so no Charges are payable, the Supplier shall have no liability to the Customer in respect of any statement relating to the approximate range of R&D Relief under clause 3.2 or in relation to the non-provision of the Report).


  15. TERM AND TERMINATION

    15.1 This Contract shall, unless otherwise terminated as provided in this clause 15, commence in accordance with clause 2.2 and, unless otherwise terminated in accordance with the provisions of the Contract, shall continue until completion of performance of the Services.

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

    (a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment;

    (b) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

    (c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

    (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, 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 other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

    (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

    (g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

    (h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

    (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

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

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

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

    15.3 On termination of the Contract for any reason:

    (a) all licences and permissions granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation (without prejudice to the Customer’s rights in respect of the Report under clause 4.1 except where termination is for the Customer’s default);

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

    (c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 7.3, unless the Supplier receives, no later than ten days after the effective date of the termination of the Contract, 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.


  16. GENERAL

    16.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

    16.2 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

    16.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

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

    16.5 Severance

    (a) If any provision or part-provision of the Contract 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 the Contract.

    (b) If any provision or part-provision of the Contract is deemed deleted under clause 16.5 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.

    16.6 Entire agreement

    (a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    (b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

    (c) Nothing in this clause shall limit or exclude any liability for fraud.

    16.7 Assignment. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

    16.8 No Partnership or Agency. Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

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

    16.10 Notices.

    (a) Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract, or such other address as may have been notified by that party for such purposes.

    (b) A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

    16.11 Governing Law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

    16.12 Jurisdiction. 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).