VERSION DATED: 27 September 2022
This Subscription Agreement (“Agreement”) is entered into between Fire DNA Limited registered with company number 12014720 (“the Supplier”) and the party executing it (electronically or otherwise) in its capacity as a “Customer” (as defined below).
The Supplier has developed certain software which it makes available to subscribers via an online platform for the purpose of digitalising certain information and data relating to the manufacture, certification, installation and inspection of fire doors, frames and other passive fire products, through the incorporation of its bespoke hardware and components designed by the Supplier for this purpose. The Customer wishes to use the Supplier’s service in its business operations.
The Supplier has agreed to provide, and the Customer has agreed to take and pay for, the Supplier’s service subject to the terms and conditions of this Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Authorised Users: the Customer (where the Customer is an individual) and those employees, agents and independent contractors of the Customer working within the Customer’s business who are authorised by the Customer to use the Services and the Documentation.
Building Owner: means a property developer or the freehold and/or leasehold owner of a property with ultimately responsibility for the fire safety of the building, and designated as a Customer class type 3.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Compatible Product: means a new or existing fire door assembly /door set or other passive fire product which incorporates, or can incorporate, some or all of the FireDNA Components for the purposes of uploading Platform Data into the Platform, as listed in Schedule 2, Part 2.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5, and which expressly excludes Public Information.
Customer: means a Manufacturer, Service Provider or a Building Owner.
Data Record: means all information relating to an individual passive fire product that is capable of being uploaded onto the Platform as Platform Data.
Documentation: any documents or information made available to the Customer and its Authorised Users by the Supplier which sets out a description of the Services and provides user instructions and advice in the use of the Fire DNA software for the Services.
Effective Date: the date of this Agreement, being the date on which it is electronically accepted by the Customer.
EULA: means the end user license Agreement referred to at clause 1, to be accepted by all Authorised Users as a condition to their use of the Platform.
Fees: means the fees to be paid by a Customer class to the Supplier under this Agreement, as set out in Schedule 1.
FireDNA Components: means the individual materials and/or hardware to be purchased from or authorised by the Supplier and attached to or embedded into a Compatible Product or assisting in embedding into a compatible product for the purposes of recording and uploading certain Platform Data, as set out in Schedule 2, Part 1.
Hosting Fees: means the fees to be paid by the Customer class type 2 or 3 for each live data record, as set out in Schedule 1.
Initial Subscription Term: the period of 12 months starting on the date of this Agreement.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Manufacturer: means a manufacturer of a passive fire protection product(s) and designated as a Customer class type 1.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Order: means an order for the purchase of any FireDNA Components by a Customer, pursuant to clause 1 of this Agreement.
Platform: means the online platform owned and operated by the Supplier and available at https://app.fire-dna.com or via any online application notified to the Customer by the Supplier from time to time.
Platform Data: the data inputted on the Platform by any Customer, its Authorised Users, or the Supplier on that Customer’s behalf for the purpose of using the Services or facilitating a Customer’s use of the Services, and includes data relating to the Compatible Product, including its manufacture, installation, maintenance and inspection history.
Public Information: means the limited Platform Data made available free of charge to a Public User as may be determined by Supplier from time to time in its sole discretion and as set out from time to time in the Documentation.
Public User: means a member of the public who is not acting in any capacity as a Customer and who may access the Public Information.
Renewal Period: the period described in clause 1.
Service Provider: means a corporate entity or an individual who is engaged directly or indirectly by a Building Owner to (i) install a Compatible Product together with certain FireDNA Components; (ii) embed certain FireDNA Components into pre-existing Compatible Products at a property/building; and/or (iii) manage, inspect, maintain or repair a Compatible Product(s), and designated as a Customer class type 2.
Services: the subscription services provided by the Supplier to the Customer via the Platform in accordance with the terms of this Agreement.
Software: the online software applications provided by the Supplier.
Software Subscription Fees: the subscription fees payable by the Customer to the Supplier, as set out in Part 1 of Schedule 1.
Software Subscription Term: has the meaning given in clause 1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision. A reference to writing or written includes faxes but not e-mail.
2.1 Subject to the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s own business operations. The Customer acknowledges that each of its Authorised Users will be required to accept the terms of the EULA.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) it will not allow or suffer any Authorised User’s account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User;
(b) each Authorised User shall keep a secure password for their use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep their password confidential;
(c) it shall provide Supplier with an up to date list of current Authorised Users within 5 Business Days of the Supplier’s written request at any time;
(d) if the Supplier reasonably believes 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 Supplier may promptly disable associated Authorised User accounts and the Supplier shall not be obliged to enable such accounts until the Customer has taken appropriate steps, at the direction of Supplier, to secure the account; and
(e) if it is determined the Customer has underpaid Software Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in Part 1 of Schedule 1 within 10 Business Days of demand being made by the Supplier, together with interest as provided in clause 8.3(b) for the period of the underpayment.
2.3 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; or
(c) is otherwise illegal or causes damage or injury to any person or property;
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.
2.4 The Customer shall not:
(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 this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from (including the reproduction of any functionality of the Platform or the FireDNA Components), 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 (i) the Software, or (ii) hardware, software or firmware integrated into the FireDNA Components; 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 to provide services to third parties; or
(d) subject to clause 21.1, 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) resell, distribute, advertise or otherwise commercially exploit the FireDNA Components;
(f) attempt to obtain, or assist third parties (including suppliers to or customers of the Customer) in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
(g) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The rights granted in clause 2.1 are granted to the Customer only, and shall not be considered granted to (and are not assignable or transferable to) any subsidiary or holding company of the Customer.
3. Supplier Goods and Services
Purchase of the FireDNA Components
3.1 The Supplier shall make the FireDNA Components available for purchase by the Customer via the Supplier’s website at www.fire-dna.com, in accordance with the Supplier’s terms and conditions of sale as set out in clause 3.1(a) to (i):
(a) Price: The price of each of the FireDNA Components shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of the Order.
(b) Acceptance of Order: The Customer’s Order of the FireDNA Components via the Supplier’s website shall only be deemed to be accepted when the Supplier issues a written confirmation of that Order.
(c) Delivery: The Supplier shall deliver the FireDNA Components to the mainland UK delivery location set out in the Order. The FireDNA Components shall be delivered with a delivery note that shows the date of the Order and the type and quantity of the goods delivered.
(d) Timing for delivery: Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the FireDNA Components that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the FireDNA Components.
(e) Quality: The Supplier warrants that on delivery, the FireDNA Components shall (i) conform in all material response with their description and any specification published by FireDNA; (ii) be free from material defect in design, material and workmanship; (iii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and (iv) be fit for any purpose held out by the Supplier. This clause 3.1(e) sets out the only warranties applicable to FireDNA Components. To the maximum extent permitted by law, all other warranties and conditions, express or implied, and whether imposed by contract, statute or otherwise, are expressly excluded.
(f) Title and Risk: The risk in the FireDNA Components shall pass to the Customer on completion of delivery. Title to the FireDNA Components shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the FireDNA Components, and any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
(g) Retention of Title: Until title to the FireDNA Components has passed to the Customer, the Customer shall: (i) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and (iii) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
(h) Payment: The Supplier may invoice the Customer for the FireDNA Components at any time from the date of the Order. The Customer shall pay each invoice submitted by the Supplier within 30 days of the date of the invoice in full and cleared funds to the bank account stated on the Supplier’s invoice, or by such other available means of payment as stated on the invoice.
(i) Interest on late payments: If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s rights or remedies under clause 13 or any other terms of this Agreement, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
3.2 The Customer acknowledges and agrees that the Platform may only be used to upload Platform Data relating to Compatible Products using the FireDNA Components.
3.3 The use of the Platform or uploading of any data to the Platform using components which are not FireDNA Components (including, for the avoidance of doubt, labels or RFID chips which are not FireDNA Components) shall constitute a breach of this Agreement for the purposes of clause 13.2(b) (Termination).
3.4 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
3.5 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time on each day, or at such other times as the Supplier considers reasonably necessary; and
(b) unscheduled maintenance performed during Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 2 hours’ notice in advance (which may be given by any means, including via the Platform).
3.6 The Supplier will, as part of the Services, provide the Customer with access to online and telephone customer support services during Normal Business Hours in accordance with the terms of this Agreement.
4. Data Protection
4.1 Definitions. The following definitions shall apply to this clause 4.
(a) Agreed purposes: (i) the maintenance by the Supplier of one or more databases of Platform Data relating to the Compatible Products using FireDNA Components, the analysis and application of such data, the creation of derivative works, and the provision of such of the Platform Data on such terms and to such persons (including Customers and Public Users) as the Supplier may in each case determine from time to time, via the Platform or otherwise; (ii) the conduct by any Customer of its business in the ordinary course of affairs (including the ownership and administration of land and buildings, and including the sale or transfer of its business or part thereof, whether by transfer of shares or of assets); and (iii) access by Public Users for non-commercial uses, including determining the status of any Compatible Product.
(b) Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation.
(c) Data Discloser: any Customer (including their Authorised Users) that discloses Shared Personal Data to the Supplier.
(d) Data Protection Legislation:
(i) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;
(ii) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data.
(e) EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
(f) UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
(g) Permitted Recipients: Customers, their Authorised Users, the employees of each Customer, any third parties engaged to perform obligations in connection with this Agreement, and Public Users accessing Public Information;
(h) Shared Personal Data: the personal data to be shared by Customers and their Authorised Users with Supplier via the Platform.
4.2 Shared Personal Data. This clause sets out the framework for the sharing of personal data between the Customer and the Supplier as controllers. Each party acknowledges that each of them (referred to in this clause as a Data Discloser) will regularly disclose to the other party (including Authorised Users) Shared Personal Data collected by the Data Discloser in order to deliver the benefit of the Services to the Customers and of the Platform to its users in general. In particular, the Customer acknowledges that the Supplier shall at all times act as an independent data controller of any Shared Personal Data and that the Services do not involve the Supplier acting as a data processor on behalf of any Customer.
4.3 Effect of non-compliance with Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation. Any material breach of the Data Protection Legislation by the Customer shall, if not remedied within 30 days of written notice from the Supplier, give grounds to the other party to terminate this Agreement with immediate effect.
4.4 Particular obligations relating to data sharing.
(a) Each party shall ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) Each party shall give full information to any data subject whose personal data may be processed under this Agreement of the nature of such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) Each party shall process the Shared Personal Data only for the Agreed Purposes;
(d) Each party shall ensure that it has in place appropriate technical and organisational measures (and the Customer confirms it has reviewed and approved the measures put in place by the Supplier, as set out in the Documentation) to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
4.5 Mutual assistance. Each party shall use reasonable commercial endeavours to assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular:
(a) Each party shall provide the other party with reasonable assistance in complying with any data subject rights request (and in the case of any assistance required by Customer, at Customer’s reasonable cost);
(b) The Customer shall assist the Supplier at its own cost (i) in responding to any request from a data subject in respect of any Platform Data and (ii) in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;
(c) Each party shall notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation which affects or is likely to affect the other party;
(d) Each party shall use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers (and the parties agree and acknowledge that the Platform and Software comprise compatible technology);
(e) Each party shall maintain complete and accurate records and information to demonstrate its compliance with this clause 4; and
(f) Each party shall provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation.
4.6 Indemnity. Customer acknowledges that Supplier is wholly reliant on Customer to comply with the Data Protection Legislation in relation to any Platform Data placed on the Platform by it or on its behalf. The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (excluding indirect or consequential losses, but including any direct loss, which shall be deemed to include, but not limited to, any loss of profit, loss of reputation, statutory penalties, damages claimed by any data subject or any other Customer, other interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents.
5. Third party providers
6. Supplier’s obligations
6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 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. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 The Supplier:
(a) does not warrant (and to the extent permitted by law, expressly excludes any warranty) that:
(i) the Customer’s use of the Services will be uninterrupted or error-free;
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(iii) that any Platform Data will be complete, accurate or not misleading;
(iv) that any certification, standard or compliance mark described on the Platform in relation to a Compatible Product has been met or that a Compatible Product complies with any applicable law, regulation, standard or code of practice;
(v) the Software or the Services will be free from Vulnerabilities or Viruses; and
(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.
6.4 This Agreement 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 this Agreement.
6.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6.6 The Supplier shall follow its archiving procedures for Platform Data as set out in its Back-Up Policy available at https://www.fire-dna.com or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Platform 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 Platform Data from the latest back-up of such Platform Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Platform Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Platform Data maintenance and back-up for which it shall remain fully liable.
7. Customer’s obligations
7.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this Agreement; 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 Platform Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement 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 this Agreement and shall be responsible for any Authorised User’s breach of this Agreement; and
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Customer, its contractors and agents to perform their obligations under this Agreement;
7.2 The Customer acknowledges and accepts that the Supplier shall have no responsibility or liability to the Customer for the legality, integrity, accuracy and quality of any of the Platform Data uploaded by any Customer.
7.3 The Customer warrants that:
(a) all Platform Data uploaded by the Customer (or any of its Authorised Users) is accurate and not misleading in any respect; and
(b) if any Platform Data is subsequently found or considered to be inaccurate or misleading, it shall either correct or permanently delete such data from the Platform within 48 hours or becoming aware of the same or upon request by the Supplier, or shall notify Supplier in writing, providing adequate information to permit the Supplier to correct or permanently delete such data.
7.4 If the Customer fails to take any steps required pursuant to clause 7.3(b) above, the Supplier may permanently remove and delete the relevant Platform Data and shall have no liability to the Customer in respect of such action.
8. Charges and payment
8.1 The Customer shall pay the applicable Fees to the Supplier in accordance with this clause 8.
8.2 The Customer shall ensure that it at all times during this Agreement and thereafter until payment of all Fees maintains with the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
(i) on the Effective Date for the Software Subscription Fees payable in respect of the Initial Subscription Term;
(ii) subject to clause 13.1, 30 days prior to each anniversary of the Effective Date for the Software Subscription Fees payable in respect of the next Renewal Period;
(iii) the applicable Hosting Fees calculated and payable on a quarterly basis (on 1st January, 1st April, 1st July and 1st October) as set out in Schedule 1; and
(iv) any additional fees that may be incurred by the Customer in accordance with the terms of this Agreement,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
8.3 If the Supplier has not received payment when due, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer and the Customer’s Authorised Users accounts and access to all or part of the Services 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 4% over the then current base lending rate of Barclays Bank Plc from time to time (but in no event less than 4%), commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 12.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
8.5 The Supplier shall be entitled to increase the Software Subscription Fees and/or the Hosting Fees, at any time after the Initial Subscription Term upon 30 days’ prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.
9. Property rights
9.1 Customer acknowledges that the Supplier shall own all right, title and interest in and to all of the Platform Data. Notwithstanding, Customer acknowledges that Supplier is wholly reliant on Customers for the accuracy of Platform Data, and accordingly that Supplier has no responsibility for the legality, reliability, integrity, accuracy or quality of all such Platform Data uploaded by any Customer.
9.2 Without limitation of clause 9.1, in consideration of the provision of the Services, the Customer grants to the Supplier a non-exclusive, perpetual, royalty-free, worldwide, sub-licensable right to publish, copy, reproduce, adapt, develop, creative derivative works from or otherwise use in any way any Platform Data contributed by or on behalf of Customer. Without limitation of the Supplier’s rights under this Agreement or at general law, the Customer acknowledges and agrees that the Supplier shall not be restricted in its right to use the Platform Data for any purpose permissible under law.
9.3 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Platform Data, the Services and the Documentation. Except as expressly stated in clause 2.1, this Agreement 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 or the Documentation.
9.4 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) in relation to the Confidential Information of the Customer, is or has at any time been Platform Data (including but not limited to any Public Information that has been made available to a Public User via the Platform);
(b) is or becomes publicly known other than through any act or omission of the receiving party;
(c) was in the other party’s lawful possession before the disclosure;
(d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(e) is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to clause 10.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
10.6 The Customer shall not make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the Supplier (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.
10.7 The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
11.1 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.
11.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, 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 does not make any admission, or otherwise attempt to compromise or settle the claim and 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.
11.3 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 this Agreement immediately on written notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 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, the Documentation, or the FireDNA Components by anyone other than the Supplier; or
(b) the Customer’s use of the Services, the Documentation, or the FireDNA Components in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services, the Documentation, or the FireDNA Components after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.5 The foregoing and clause 12.3(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of liability
12.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation 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 this Agreement; and
(c) the Services and the Documentation and the Platform Data are provided to the Customer on an “as is” basis.
12.2 Nothing in this Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited by English law.
12.3 Subject to clause 12.1 and clause 12.2:
(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, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Software Subscription Fees paid by the relevant Customer during the 12 months immediately preceding the date on which the claim arose.
12.4 Nothing in this Agreement limits or excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
13. Term and termination
13.1 This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Software Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
(c) 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 (IA 1986), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the IA 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(d) 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;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(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 (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) 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 13.2(c) to clause 13.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
13.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and the Platform Data;
(b) the Supplier may (without any limitation or obligation in this regard and without restricting the Supplier’s rights in any way in relation to Platform Data) destroy or otherwise dispose of any of the Platform Data that has been uploaded to the Platform by that Customer (the “Archived Data”), unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Archived 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 Archived Data; and
(c) 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.
14. Force majeure
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”), provided that the Customer is notified of such an event.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
Save where expressly provided for in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
18. Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
19.2 If any provision or part-provision of this Agreement is deemed deleted under clause 19.1 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.
20. Entire agreement
20.1 This Agreement 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.
20.2 Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
20.3 The Customer agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
21.1 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 this Agreement.
21.2 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 this Agreement.
22. No partnership or agency
Nothing in this Agreement 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).
23. Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in Part 1 of this Agreement.
24.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, where business hours resume. In this clause 24.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a Business Day.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. Governing law and jurisdiction
This Agreement 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. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement was updated on 27 September 2022 and is effective immediately.
The Supplier may update the terms and conditions of this Agreement from time to time, which may include making changes to fees and payment terms. The current terms in force will be posted on the Platform. The Supplier will notify you of any material changes to the terms of this Agreement by sending Customers an email with details of the changes, or otherwise notifying you of any changes next time you log into the Platform. Any changes to the terms of this Agreement and posted onto the Platform shall be effective immediately. Your continued use of the Platform will be deemed to constitute an acceptance of the revised terms