1.1. In addition to the definitions set out in the Commercial Details and Section 2 of this Agreement (Service Description), the definitions and rules of interpretation in this Clause 1 apply in this Agreement:
|Applicable Law||the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to this Agreement and the provision of the Hardware, Software, Services, Platform(s) and/or Documentation;|
|Authorised Users||subject to any restrictions in Section 2 (Service Description), those employees, officers, agents and contractors of the Client who are authorised by the Client to use the Hardware, Software, Services, Platform(s) and/or Documentation;|
|Business Day||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;|
|Charges||the charges set out in Part 5 of the Commercial Details;|
|Commercial Details||Section 1 of this Agreement (Commercial Details);|
|Confidential Information||all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, agents or sub-contractors to the other party and that party’s employees, officers, agents or sub-contractors whether before or after the date of this Agreement and in particular:(a) details of the Hardware, Software, Services, Platform(s) and/or Documentation, and the results of any performance tests of the Services, constitute Navitas’ Confidential Information; and(b) the Client Data constitutes the Client’s Confidential Information;|
|Client Data||the data inputted by the Client, Authorised Users, or Navitas on the Client’s behalf for the purpose of using the Platform Services or facilitating the Client’s use of the Platform Services;|
|Data Protection Legislation||the Data Protection Act 2018 and thereafter:(a) unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR; and then(b) any other relevant aspect of Applicable Law;|
|Documentation||the documentation made available to the Client by Navitas online via the relevant Platform(s) or such other web address notified by Navitas to the Client from time to time which sets out a description of the Services and the user instructions for the Services;|
|Leasing Arrangement||any leasing or financing arrangement relating to all or any part of the Hardware which the Client enters into with a third-party referred to the Client by Navitas for the purpose;|
|Leasing Company||the party(ies) to a Leasing Arrangement other than the Client;|
|Normal Business Hours||9.00 am to 5.00 pm local UK time, each Business Day;|
|Renewal Period||the period described in Clause 14.1 (Term and Termination);|
|Services||the services provided by Navitas to the Client under this Agreement:(a) via the Platform(s) (the “Platform Services”);(b) as described in Section 2 (Service Description);(c) any Installation Services;(d) any Training Services;(e) any Calibration Services;(f) any Support Services; and/or(g) otherwise agreed by the parties in writing from time to time;|
|Site(s)||the Client sites described in Section 2 (Service Description);|
|Site Subscriptions||the Site subscriptions purchased by the Client pursuant to this Agreement, which entitle the Client to use the Hardware, Software, Services, Platform(s) and/or Documentation in relation to Client Data collected or created in respect of the relevant Site(s);|
|Software||the online software applications provided by Navitas as part of the Services (including the Platform(s));|
|Subscription Term||has the meaning given in Clause 14.1 (Term and Termination);|
|Support Services Policy||Navitas’ policy for providing support in relation to the Services as made available on the relevant Platform(s) or such other website address as may be notified to the Client from time to time;|
|User Subscriptions||the user subscriptions purchased by the Client pursuant to this Agreement which entitle an equivalent number of Authorised Users to access and use the Hardware, Software, Services, Platform(s) and/or Documentation in accordance with this Agreement;|
|Virus||any thing, software, code, or device which may: prevent, impair or otherwise adversely affect the operation of any computer software, data, hardware or network, any telecommunications service, equipment or network.|
1.2. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3. Unless stated otherwise, a reference to:
1.3.1. a part, is to a part of a Section; and
1.3.2. a clause, is to a clause within the Section in which the reference is made.
1.4. A reference to a statute or statutory provision:
1.4.1. is a reference to it as it is in force as at the date of this Agreement; and
1.4.2. shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.5. A reference to “writing” or “written” includes e-mails.
2. USE OF THE SERVICES AND PLATFORMS
2.1. Navitas hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Hardware, Software, Services, Platform(s) and/or Documentation during the Subscription Term. This right is granted:
2.1.1. solely for the Client’s internal business operations;
2.1.2. in respect of NDFS Services, with respect to the relevant Sites and Site Subscriptions; and
2.1.3. subject to:
(a) the other terms and conditions of this Agreement; and
(b) such acceptable use policies or other “end-user licence” agreements as Navitas may reasonably include on the Platform(s) from time to time (save that such policies and agreements may not vary the Charges or impose any additional costs in respect of the use of the Platform(s)).
2.2. The Client shall not:
2.2.1. 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; or
(f) is otherwise illegal or causes damage or injury to any person or property;
2.2.2. 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:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software, Hardware and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Hardware;
2.2.3. access all or any part of the Hardware, Software, Services, Platform(s) or Documentation in order to build a product or service which competes with the Hardware, Software, Services, Platform(s) and/or Documentation;
2.2.4. use the Hardware, Software, Services, Platform(s) or Documentation to provide services to third parties;
2.2.5. subject to Clause 15.8.1(Assignment and Sub-Contracting), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Hardware, Software, Services, Platform(s) or Documentation available to any third party except the Authorised Users; or
2.2.6. attempt to obtain, or assist third parties in obtaining, access to the Hardware, Software, Services, Platform(s) and/or Documentation, other than as provided under this Clause 2,
and Navitas reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any Platform if the Client breaches the provisions of this Clause 2.2.
2.3. The rights provided under this Clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
3. LEASING ARRANGEMENTS
3.1. The Client acknowledges and accepts that this Agreement and any Leasing Arrangement are separate contracts and that:
3.1.1. as between the Client and the Leasing Company, title to the Hardware subject to a Leasing Arrangement shall pass to the Leasing Company;
3.1.2. it shall not have any right to make any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Law) under the Leasing Arrangement as a result of Navitas’ acts or omissions under this Agreement; and
3.1.3. Navitas may, if necessary for the performance of this Agreement or the Leasing Arrangement, transfer personal data relating to the Client’s employees, officers, sub-contractors and agents to the Leasing Company.
4. CLIENT DATA
4.1. Save as expressly set out in this Agreement, the Client shall:
4.1.1. own all right, title and interest in and to all of the Client Data that is not personal data; and
4.1.2. have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
4.2. Navitas shall follow its archiving procedures for Client Data as set out in its Back-Up Policy available on the relevant Platform(s), as such document may be amended by Navitas in its sole discretion from time to time.
4.3. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against Navitas shall be for Navitas to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Navitas in accordance with the archiving procedure described in its Back-Up Policy.
4.4. Navitas shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Navitas to perform services related to Client Data maintenance and back-up for which it shall remain fully liable under Clause 4.10below).
4.5. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 4is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
4.6. The parties acknowledge that:
4.6.1. if Navitas processes any personal data on the Client’s behalf when performing its obligations under this Agreement, the Client is the controller and Navitas is the processor for the purposes of the Data Protection Legislation (where “Controller” and “Processor” have the meanings as defined in the Data Protection Legislation);
4.6.2. Section 2 of this Agreement (Service Description) sets out the scope, nature and purpose of processing by Navitas, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, “Personal Data”) and categories of Data Subject; and
4.6.3. the personal data may be transferred or stored outside the EEA in order to carry out the Services and Navitas’ other obligations under this Agreement.
4.7. Without prejudice to the generality of Clause 4.5above, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Navitas for the duration and purposes of this Agreement so that Navitas may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Client’s behalf.
4.8. Without prejudice to the generality of Clause 4.5above, Navitas shall, in relation to any Personal Data processed in connection with the performance by Navitas of its obligations under this Agreement:
4.8.1. process that Personal Data only on the written instructions of the Client or as otherwise required by Data Protection Legislation;
4.8.2. not transfer any Personal Data outside of the European Economic Area unless Navitas complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
4.8.3. assist the Client, at the Client’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; and
4.8.4. notify the Client without undue delay on becoming aware of a Personal Data breach.
4.9. Each party shall ensure that it has in place appropriate technical and organisational measures to protect against:
4.9.1. unauthorised or unlawful processing of Personal Data; and
4.9.2. 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.
4.10. The parties agree that Navitas:
4.10.1. may appoint third-party processors of Personal Data;
4.10.2. shall have entered or will enter into a written agreement with such third-party processors substantially on that third party’s standard terms of business, in accordance with the “EU Model Clauses” or otherwiseincorporating terms which are substantially similar to those set out in this Clause 4; and
4.10.3. as between the Client and Navitas, shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 4.11.
4.11. The Client agrees that Navitas may complete credit or other financial checks and retain and process the results of those checks when determining if and how to contract with the Client.
5.1. Navitas shall deliver the Hardware to the Sites, using all reasonable endeavours to complete delivery by the date and time agreed between the parties. Delivery shall be completed on the completion of the unloading of the Hardware at the relevant Site.
5.2. Navitas may deliver the Hardware by instalments, which may be invoiced separately.
5.3. Delays in the delivery of Hardware shall not entitle the Client to:
5.3.1. refuse to take delivery of the Hardware; or
5.3.2. terminate this Agreement, subject always to Clause 14.2.2 (Term and Termination).
5.4. Navitas shall have no liability for, and may charge the Client for any costs it reasonably incurs in respect of, any:
5.4.1. failure or delay in delivering Hardware; or
5.4.2. misuse of Hardware,
to the extent that any failure, delay or misuse is caused by the Client’s failure to comply with its obligations under this Agreement.
5.5. Unless otherwise agreed in writing, Navitas shall, at its discretion:
5.5.1. install the Hardware at the relevant Sites; or
5.5.2. provide the Client with the means to install the Hardware via the Platform or another application, in which case the installation shall be completed by the Client.
5.6. The Client shall procure that:
5.6.1. a duly authorised employee, officer, agent or contractor of the Client shall be present at each installation of the Hardware, whose acceptance of installation shall constitute conclusive evidence that the Client has examined the Hardware and installation and has found it to be in good condition and complete; and
5.6.2. it provide any materials, facilities or access which Navitas may reasonably specify as necessary for an installation at a Site (which shall include a Wi-Fi system of a standard and coverage suitable for the installation of the Hardware).
5.7. Navitas shall have no liability for, and may charge the Client for any costs it reasonably incurs in respect of, any:
5.7.1. failure or delay in the installation of Hardware;
5.7.2. failure to provide suitable materials, facilities or access at a Site; and/or
5.7.3. misuse of Hardware,
to the extent that any failure, delay or misuse is caused by the Client’s failure to comply with its obligations under this Agreement. This may include:
5.7.4. a failure to pay any charges due in respect of an installation in advance of the installation;
5.7.5. aborted visit charges if an installation cannot be satisfactorily completed in one visit to a Site; and
5.7.6. costs incurred in respect of alternative installation solutions, such as the use of Sim Cards rather than Wi-Fi systems.
5.8. Subject to Clauses 5.9 and 5.10 below, the Hardware supplied to the Client by Navitas under this Agreement shall:
5.8.1. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended); and
5.8.2. be free from defects in design, material and workmanship and remain so for:
(a) 12 months after Delivery; or
(b) such other period of time as the parties may agree in writing from time to time.
5.9. Navitas shall use all reasonable endeavours to remedy, free of charge, any Hardware in material breach of Clause 5.8 above, provided that:
5.9.1. the Client notifies Navitas of any defect in writing within ten Business Days of becoming aware of the defect;
5.9.2. the Client does not make any further use of the relevant Hardware after having given notice to Navitas;
5.9.3. Navitas is permitted to make a full examination of the alleged defect; and
5.9.4. the defect is directly attributable to defective material, workmanship or design, and in particular does not result from:
(a) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(b) misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Navitas’s authorised personnel;
(c) the Client’s failure to comply with Clause 2 (Use of the Services and Platform) or Clause 8 (Client’s Obligations);
(d) any specification, information, drawing, design or any other assistance supplied or furnished by the Client or on its behalf; or
(e) changes made to ensure they comply with Applicable Law.
5.10. If Navitas fails to remedy any material defect in the Hardware in accordance with Clause 5.9 above, Navitas shall, at its discretion replace or provide a temporary substitute for the Hardware (whether with an exact copy or a materially comparable replacement). Navitas shall have no further liability to the Client for the rejected Hardware’s failure to comply with Clause 5.9 above.
TITLE AND RISK
5.11. Risk in the Hardware shall pass to the Client on Delivery.
5.12. Subject to Clause 3 (Leasing), as between Navitas and the Client, title to the Hardware shall not pass to the Client until such time as the parties agree in writing the basis on which the Client shall pay Navitas for:
5.12.1. the Hardware; and
5.12.2. all other sums that are or that become due to Navitas from the Client on any account on or before the expiry of this Agreement,
in which case title to the Hardware shall pass at the time of payment of all such sums.
5.13. Until title to Hardware has passed to the Client, the Client shall:
5.13.1. store the Hardware separately from all other goods held by the Client so that it remains readily identifiable as Navitas’ property;
5.13.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware; and
5.13.3. maintain the Hardware in satisfactory condition and keep it insured for its full replacement value against all risks with a reputable insurer.
6. THIRD PARTY PROVIDERS
6.1. The Client acknowledges that the Platform Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not Navitas.
6.2.1. makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party;
6.2.3. does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Platform Services.
7. NAVITAS’ OBLIGATIONS
7.1. Navitas shall:
7.1.1. during the Subscription Term, provide the relevant Hardware, Software, Services, Platform(s) and Documentation to the Client:
(a) in accordance with and subject to the terms of this Agreement; and
(b) with reasonable skill and care;
7.1.2. use commercially reasonable endeavours to achieve the relevant Platform Availability Targets, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
(b) unscheduled maintenance, provided that Navitas has used reasonable endeavours to give the Client at least three Normal Business Hours’ notice in advance;
7.1.3. where required to provide support services, provide the Client with Navitas’ standard customer support services during Normal Business Hours in accordance with Navitas’ Support Services Policy in effect at the time that the Services are provided. Navitas may amend the Support Services Policy in its sole and absolute discretion from time to time; and
7.1.4. maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7.2. Clause 7.1above shall not apply to the extent of any non-conformance which is caused by:
7.2.1. use of the Hardware, Software, Services, Platform(s) or Documentation contrary to Navitas’ instructions; or
7.2.2. modification or alteration of the Hardware, Software, Services, Platform(s) or Documentation by any party other than Navitas or Navitas’ duly authorised contractors or agents.
7.3.1. does not warrant that:
(a) the Client’s use of the Platform Services will be uninterrupted or error-free; or
(b) the Hardware, Software, Services, Platform(s), Documentation and/or the information obtained by the Client through them will meet the Client’s requirements; and
7.3.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over the internet or other communications networks and facilities.
The Client acknowledges that the Hardware, Software, Services, Platform(s) and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4. If the Services do not conform with Clauses 7.1 to 7.3 above, Navitas shall, at its expense:
7.4.1. use all reasonable commercial endeavours to correct any such non-conformance promptly; or
7.4.2. provide the Client with an alternative means of accomplishing the desired performance.
Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1above.
7.5. This Agreement shall not prevent Navitas from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and services which are similar to those provided under this Agreement.
8. CLIENT’S OBLIGATIONS
8.1. The Client shall:
8.1.1. provide Navitas with:
(a) all necessary co-operation in relation to this Agreement; and
(b) access to such information as may be required by Navitas,
in order to provide the Services, including Client Data, security access information, configuration information, health and safety information and security requirements that apply at any of the Sites;
8.1.2. provide such materials, facilities, access and working conditions as are reasonably necessary to enable Navitas to provide the Services safely and expeditiously;
8.1.3. comply with all Applicable Laws with respect to its activities under this Agreement;
8.1.4. carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
8.1.5. ensure that the Authorised Users use the Hardware, Software, Services, Platform(s) and Documentation in accordance with the terms and conditions of this Agreement;
8.1.6. be responsible for any Authorised User’s breach of the Client’s obligations under this Agreement;
8.1.7. obtain and maintain all necessary licences, consents, and permissions necessary for Navitas, its employees, officers, sub-contractors and agents to perform their obligations under this Agreement;
8.1.8. ensure each Authorised User keep any passwords relating to their use of the Hardware, Software, Services, Platform(s) and/or Documentation confidential;
8.1.9. use all reasonable endeavours to prevent any unauthorised access to, or use of, the Hardware, Software, Services, Platform(s) or Documentation and, in the event of any such unauthorised access or use, promptly notify Navitas;
8.1.10. ensure that its network, Wi-Fi hardware, cellular devices, and systems comply with the relevant specifications provided by Navitas from time to time;
8.1.11. be, to the extent permitted by Applicable Law and except as otherwise expressly provided in this Agreement, solely responsible for:
(a) procuring, maintaining and securing its use of the internet, Wi-Fi hardware, cellular devices or other communications networks and facilities (whether from its systems to Navitas’ data centres or otherwise); and
(b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s use of the internet or other communications networks and facilities;
8.1.12. ensure that any Hardware is:
(a) kept and operated in a suitable environment;
(b) used only for the purposes for which it is designed; and
(c) operated in a proper manner by trained competent staff in accordance with Navitas’s oral or written instructions for the storage, commissioning, installation, use and maintenance of the Hardware from time to time or (if there are none) good industry practice regarding the same;
8.1.13. take such steps (including compliance with all safety and usage instructions provided by Navitas) as may be necessary to ensure, so far as is reasonably practicable, that the Hardware is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
8.1.14. make no alteration to the Hardware and not remove any existing component(s) from the Hardware unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one supplied by Navitas which is of a similar make and model or an improved/advanced version of it;
8.1.15. keep Navitas fully informed of all material matters relating to the Hardware;
8.1.16. keep the Hardware at all times at the relevant Site and shall not move or attempt to move any part of the Hardware to any other location without Navitas’s prior written consent;
8.1.17. permit Navitas to inspect the Hardware at all reasonable times and for such purpose to enter upon the Sites or any premises at which the Hardware may be located, and shall grant reasonable access and facilities for such inspection;
8.1.18. not, without the prior written consent of Navitas, part with control of (including for the purposes of repair or maintenance), sell or offer for sale or lease the Hardware to a third party;
8.1.19. promptly inform Navitas of any proposed changes to the list of Sites; and
8.1.20. permit Navitas, or Navitas’ designated auditor, to audit the Services in order to establish the Client’s compliance with this Agreement, on the basis that:
(a) audits may be conducted no more than once in every six months;
(b) audits are conducted at Navitas’ expense;
(c) reasonable prior notice shall be given of any proposed audit, in such a manner as not to substantially interfere with the Client’s normal conduct of business;
(d) if an audit reveals a material breach of this Agreement, then without prejudice to Navitas’ other rights, Navitas may cease the provision of the Services, Hardware and Documentation and prevent further access to the Platform(s) until the breach is rectified; and
(e) if an audit reveals that the Client has underpaid any Charges, then without prejudice to Navitas’ other rights, the Client shall pay to Navitas an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
8.2. Navitas may:
8.2.1. make any reasonable adjustments to any agreed timetable, delivery or performance schedules;
8.2.2. charge any reasonably incurred additional costs; and/or
8.2.3. where reasonable, refuse to begin or continue the provision of an element of the Services (such as training or support services),
in the event of delays or failures in the Client’s performance of its obligations under Clause 8.1 above.
9. CHARGES AND PAYMENT
9.1. Navitas will invoice the Client for the Charges in accordance with the intervals set out in the Commercial Details. If no intervals are so specified Navitas shall invoice the Client at the end of each month for Services and Hardware provided during that month.
9.2. The Client shall pay each invoice within 30 days of the date of invoice. The Client shall also provide to Navitas and maintain during the Subscription Term:
9.2.1. valid, up-to-date and complete credit card details which the Client authorises Navitas to charge in accordance with the terms of this Agreement; or
9.2.2. approved purchase order information acceptable to Navitas; and
9.2.3. any other relevant valid, up-to-date and complete contact and billing details reasonably requested by Navitas.
9.3. If Navitas has not received payment within 10 Business Days after the due date, and without prejudice to any other rights and remedies of Navitas:
9.3.1. Navitas may, without liability to the Client, disable the Client’s passwords, accounts and access to all or part of the Services and Navitas shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Navitas’ bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4. All amounts and charges stated or referred to in this Agreement:
9.4.1. unless otherwise agreed by Navitas in writing, shall be payable in pounds sterling;
9.4.2. are non-cancellable and non-refundable;
9.4.3. are exclusive of value added tax and any applicable import or export taxes, tariffs and customs charges, which shall be added to Navitas’ invoice(s) at the appropriate rate; and
9.4.4. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Law).
9.5. If, at any time whilst using the Services, the Client exceeds any amount of disk storage space specified in the Documentation, Navitas shall charge the Client, and the Client shall pay, Navitas the relevant excess storage charges listed in the Documentation.
9.6. Further to the price review mechanism set out in Part 5 of Section 1 (Price Review), Navitas shall be entitled to increase the Charges payable under this Agreement (including the support charges payable pursuant to Clause 7.1.3(Services) at the end of the Initial Term and any Renewal Period, upon no less than 120 days’ prior notice to the Client and the Commercial Details shall be deemed to have been amended accordingly.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. The Client acknowledges and agrees that:
10.1.1. Navitas and/or its licensors own all intellectual property rights in the Hardware, Software, Services, Platform(s) and the Documentation; and
10.1.2. except as expressly stated herein, this Agreement does not grant the Client 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 Hardware, Software, Services, Platform(s) or Documentation.
10.2. Navitas confirms that it has all the rights in relation to the Hardware, Software, Services, Platform(s) 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.
11.1. 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:
11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2. was in the other party’s lawful possession before the disclosure;
11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4. is independently developed by the receiving party.
11.2. Save as expressly set out in this Agreement, each party shall hold the other’s Confidential Information in confidence and not:
11.2.1. make the other’s Confidential Information available to any third party; or
11.2.2. use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3. 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, officers, sub-contractors or agents in violation of the terms of this Agreement.
11.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable 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.
11.5. Notwithstanding Clause 4 (Client Data) and Clauses 11.1 to 11.4 above, the Client agrees that Navitas may:
11.5.1. where it has appointed a sub-contractor pursuant to Clause 15.8.2 (General), disclose such Confidential Information as is necessary for the sub-contractor’s performance of its obligations in respect of the Agreement (on the basis that Navitas remains responsible for that sub-contractor’s use of such Confidential Information);
11.5.2. where reasonably necessary in connection with the Leasing Arrangement, disclose such Confidential Information to the Leasing Company;
11.5.3. publicise its relationship with the Client, including by reference in any marketing materials, tenders, company statements, so long as such publicity does not divulge any Client Data or details of the Charges paid by the Client for any Services or Hardware; and
11.5.4. where the relevant Client Data has been aggregated and anonymised in accordance with good industry practice, review, collect, process, disclose and sell all or any part of the Client Data both:
(a) internally and to members of its group (whether for training purposes, to improve Navitas’ client support, for the completion of improvements to the Services and the Hardware, or otherwise); and
(b) to third-parties (including manufacturers of the Hardware).
12.1. Navitas shall defend the Client against any claim that the Hardware, Software, Services, Platform(s) or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark or database right, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
12.1.1. Navitas is given prompt notice of any such claim;
12.1.2. Navitas is given sole authority to defend or settle the claim; and
12.1.3. the Client provides reasonable co-operation to Navitas in the defence and settlement of such claim, at Navitas’ expense.
12.2. In the defence or settlement of any claim, Navitas may:
12.2.1. procure the right for the Client to continue using the relevant Hardware, Software, Services, Platform(s) and/or Documentation;
12.2.2. replace or modify the relevant Hardware, Software, Services, Platform(s) and/or Documentation so that they become non-infringing; or
12.2.3. if such remedies are not reasonably available, terminate this Agreement on two Business Days’ notice to the Client.
12.3. In no event shall Navitas, its employees, officers, agents or sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
12.3.1. a modification of the Hardware, Software, Services, Platform(s) and/or Documentation by anyone other than Navitas;
12.3.2. the Client’s use of the Hardware, Software, Services, Platform(s) and/or Documentation in a manner contrary to this Agreement or the instructions given to the Client by Navitas; or
12.3.3. the Client’s use of the Hardware, Software, Services, Platform(s) and/or Documentation after notice of the alleged or actual infringement from Navitas or any appropriate authority.
12.4. This Clause 12, subject to Clause 13.2.2(Limitation of Liability), states the Client’s sole and exclusive rights and remedies, and Navitas’ (including Navitas’ employees’, officers’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark or database rights.
12.5. The Client shall indemnify and hold harmless Navitas against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal charges) arising out of or in connection with the Client’s use of the Hardware, Software, Services, Platform(s) and/or Documentation.
13. LIMITATION OF LIABILITY
13.1. Except as expressly and specifically provided in this Agreement:
13.1.1. the Client assumes sole responsibility for results obtained from the use of the Hardware, Software, Services, Platform(s) and Documentation by the Client, and for conclusions drawn from such use;
13.1.2. 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
13.1.3. the Hardware, Software, Services, Platform(s) and Documentation are provided to the Client on an “as is” basis.
13.2. Subject to Clause 13.1above:
13.2.1. Navitas shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
(a) damage caused by errors or omissions in any information, instructions or scripts provided to Navitas by the Client in connection with the Services;
(b) actions taken by Navitas at the Client’s direction;
(c) error or inaccuracy in the Services caused by:
i) or based on, documents, information, items and materials provided by the Client or any other third-party on the Client’s behalf;
ii) Wi-Fi facilities, internet access or other communications networks and facilities provided or used by the Client or any other third-party on the Client’s behalf;
iii) restrictions on the Navitas group’s access to the relevant Site or premises subject to the Services;
(d) loss of profits, business, anticipated savings or agreements;
(e) depletion of goodwill and/or similar losses;
(f) loss or corruption of data or information;
(g) loss of or damage to goodwill;
(h) pure economic loss; or
(i) special, indirect or consequential loss, costs, damages, charges or expenses,
however arising under this Agreement; and
13.2.2. Navitas’ total aggregate liability in contract (including in respect of 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 Charges paid to Navitas by the Client during the 12 months immediately preceding the date on which the claim arose.
14. TERM AND TERMINATION
14.1. This Agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
14.1.1. if there is a Trial Period detailed in the Commercial Details, either party gives the other party written notice to terminate no later than five Business Days before the end of that Trial Period, in which case this Agreement shall terminate at the end of that Trial Period;
14.1.2. either party gives the other party not less than 90 days’ written notice, to expire on the date of the expiry of the Initial Term or then current Renewal Period, in which case this Agreement shall terminate upon that expiry date; or
14.1.3. otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
14.2. 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:
14.2.1. 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 10 Business Days after being notified in writing to make such payment;
14.2.2. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 20 Business Days after being notified in writing to do so;
14.2.3. the other party suspends payment of its debts, is unable to pay its debts as they fall due or admits inability to pay its debts;
14.2.4. the other party enters into any compromise or arrangement with its creditors;
14.2.5. a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
14.2.6. an administrator, administrative receiver or receiver is appointed over the assets of the other party;
14.2.7. 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;
14.2.8. 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 14.2.3to Clause 14.2.7above (inclusive); or
14.2.9. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3. On termination of this Agreement for any reason:
14.3.1. all licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Hardware, Software, Services, Platform(s) and Documentation (including any policies produced by Navitas for the Client);
14.3.2. each party shall:
(a) return to the other party at its own expense; and
(b) make no further use of,
any equipment, property, Documentation and other items (and all copies of them) belonging to the other party (including any Hardware still owned by Navitas);
14.3.3. if the Client fails to promptly comply with Clause 14.3.2 above, Navitas may enter any premises of the Client or of any third party where the relevant equipment, property, Documentation and other items is stored to recover it;
14.3.4. Navitas may destroy or otherwise dispose of any of the Client Data in its possession, unless Navitas receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Navitas shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all sums outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Navitas in returning or disposing of Client Data;
14.3.5. where the Agreement is terminated by Navitas for any reason other than Clause 14.1.1 above, any sums currently or to be payable in respect of this Agreement during the remainder of:
(a) the Initial Term; or
(b) the then current Renewal Period,
may immediately be invoiced by Navitas and shall be payable by the Client in accordance with Clause 9 (Charges and Payment);
14.3.6. any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect; and
14.3.7. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected or prejudiced.
15.1. NON-SOLICITATION: The Client shall not (except with Navitas’ prior written consent) directly or indirectly solicit or entice away from Navitas’ employment any person employed or engaged by Navitas in the provision of the Services during the Term or for a further period of six months after the termination of this Agreement. If the Client breaches this Clause 15.1, it shall pay Navitas a sum equal to one year’s basic salary to that employee, worker or independent contractor plus the recruitment costs incurred by Navitas in replacing such person.
15.2.1. Any notice required to be given under this Agreement shall be in writing and shall be:
(a) 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 this Agreement, or such other address as may have been notified by that party for such purposes; or
(b) sent by e-mail to any e-mail address provided for the purpose by the other party (which includes any e-mail address used or provided by the Client when negotiating the Agreement).
15.2.2. A notice:
(a) delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery);
(b) 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; and
(c) sent by e-mail shall be deemed to have been received at the time of transmission.
15.3. FORCE MAJEURE:
15.3.1. Navitas shall have no liability to the Client 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 (a “Force Majeure Event”).
15.3.2. Force Majeure Events shall include strikes (whether involving the workforce of Navitas or any other party), failure of a utility service, transport network or communications network or facility, failure of one or more data centres, acts of God, terrorism, war, riot, civil commotion, malicious damage, compliance with Applicable Law, accident, breakdown of equipment (electronic or otherwise), fire, flood, storm or default of suppliers or sub-contractors.
15.4. CONFLICT: If there is an inconsistency between any Sections of this Agreement they shall prevail in the following order:
15.4.1. Section 1 (Commercial Details);
15.4.2. Section 2 (Hardware, Services and Site Details); and
15.4.3. Section 3 (Terms and Conditions).
15.5. VARIATION: No variation of this Agreement shall be effective unless it is agreed by the parties in writing.
15.6.1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by Applicable 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.
15.6.2. 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.
15.7. ENTIRE AGREEMENT:
15.7.1. 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.
15.7.2. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
15.7.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.8. ASSIGNMENT AND SUB-CONTRACTING:
15.8.1. The Client shall not, without Navitas’ prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
15.8.2. Navitas 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 (which may include sub-contracting and assignment to other companies in the Navitas corporate group).
15.9. THIRD PARTY RIGHTS:
15.9.1. Subject to Clauses 15.9.2 and 15.9.3 below, 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.
15.9.2. Rights granted to Navitas under this Agreement shall be directly enforceable against the Client by any member of the Navitas corporate group to whom any right or obligation under this Agreement is assigned or sub-contracted pursuant to Clause 15.8.2 (Assignment and Sub-Contracting). The Client shall be entitled to treat breaches of this Agreement by any such member of the Navitas corporate group on the basis that they were committed by Navitas.
15.9.3. Rights granted to the Leasing Company pursuant to Clause 3 (Leasing) shall be directly enforceable against the Client by the Leasing Company; and
15.9.4. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
15.10. 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 non-exclusive jurisdiction to settle any such dispute or claim.