These Master Terms & Conditions apply to all Applications and Services which AnyData provides.
Client agrees to these Master Terms & Conditions by (i) signing an Order Form that references these Master Terms & Conditions, (ii) clicking a box on a website indicating acceptance, (iii) downloading, installing or accessing any Applications or Services developed or provided by AnyData.
1 Definitions and interpretation
1.1 In this Agreement:
- “Agreement” means these Master Terms & Conditions, the Order Form and the documents referred to on the Order Form, each as varied from time to time in accordance with their terms.
- “AnyData” means AnyData Solutions Limited, a company incorporated in England with company number 08514790 having its principal place of business at 2nd floor, 6 Arlington Street, London SW1A 1RE.
- “Applicable Law” means all applicable laws, regulations, regulatory requirements and codes of practice of any relevant jurisdiction, as amended and in force from time to time.
- “Application” means a Cloud Hosted Application or Client Hosted Application set out on the Order Form.
- “Application Feature List” means a document describing the features available in an Application.
- “Business Day” means any day which is not a Saturday, Sunday or public or bank holiday in England.
- “Charges” means the charges to be paid by Client for the Applications and Services calculated in accordance with the Order Form and Clause 7(Charges).
- “Client” means the organisation referred to as such on the Order Form.
- “Client Data” means any data provided by Client to AnyData.
- “Client Hosted Application” means an Application or Platform identified as such on the Order Form and which is licensed for use on Client’s own (or its service provider’s) equipment.
- “Cloud Hosted Application” means an Application or Platform identified as such on the Order Form and which is hosted by AnyData and made available by AnyData as a service for access by Client.
- “Commencement Date” means the date of the Agreement.
- “Competent Authority” means any judicial or regulatory authority having jurisdiction over this Agreement or any of the parties.
- “Force Majeure Event” has the meaning set out in Clause 18(Force majeure).
- “Group” means a party, its parent undertaking and the subsidiary undertakings of its parent undertaking and its associated companies.
- “Integrated Data Services” means the services identified as such on the Order Form, which may include data capture, integration, cleansing, normalization, enrichment and categorization.
- “Intellectual Property Rights” means all vested and future rights of copyright and related rights, design rights, database rights, patents, rights to inventions, trade marks and get-up (and goodwill attaching to those trade marks and that get up), domain names, applications for and the right to apply for any of the above, moral rights, goodwill (and the right to sue for passing off and unfair competition), rights in know-how, rights in confidential information, rights in computer software, and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, whether now known or in future subsisting in any part of the world.
- “Malpractice” means the giving or receiving of any financial or other advantage that may be construed as a bribe, whether for the purpose of the Bribery Act 2010 or any other Applicable Law.
- “Order Form” means (a) the order form to which these Master Terms & Conditions are attached or (b) the online registration form from where these Master Terms & Conditions are linked.
- “Other Services” means the services identified as such on the Order Form, which may include implementation, training and support.
- “Platform” means a defined set of applications and related services as described in a feature list.
- “Service Levels” means the service levels set out in the SLA.
- “Services” means the Integrated Data Services and the Other Services set out on the Order Form.
- “SLA” means the service level agreement document either attached to the Order Form or available on AnyData’s website, as amended from time to time.
- “Term” means the period during which the Agreement is in force.
- “Termination” means the termination or expiry of the Agreement, howsoever occurring.
- “User” means an individual authorized to use the Applications in accordance with this Agreement.
- “VAT” means value added tax or any locally applicable equivalent sales tax.
(a) a statute or statutory provision includes a reference to:
(i) any statutory amendment, consolidation or re-enactment of it to the extent in force from time to time;
(ii) all orders, regulations, instruments or other subordinate legislation (as defined in section 21(1) of the Interpretation Act 1978) made under it to the extent in force from time to time; and
(iii) any statute or statutory provision of which it is an amendment, consolidation or re-enactment;
(b) a “person” includes a legal or natural person, partnership, association, trust, company, corporation, joint venture, government, state or agency of the state or other body;
(c) reference to a Clause is to a clause of the Agreement and any reference to the Agreement includes its attachments;
(d) the terms “holding company”, “subsidiary”, “parent undertaking”, “subsidiary undertaking” and “wholly-owned subsidiary” shall be interpreted in accordance with the Companies Act 2006, and the term “associated company” shall be interpreted in accordance with section 449 of the Corporation Tax Act 2010; and
(e) any agreement (including the Agreement) or other document or the provisions of them is a reference to that agreement, document or provision as amended, novated, supplemented, extended, restated or replaced from time to time.
1.3 The headings in the Agreement are for ease of reference only and are to be ignored when interpreting the Agreement.
1.4 In the Agreement the interpretation of general words shall not be restricted by words indicating a particular class or particular examples.
The Agreement shall commence on the Commencement Date and shall (except as expressly provided otherwise in the Agreement) continue until terminated or until (a) the Services have been completed and (b) the terms for every Application have terminated.
3 Use of Applications
3.1 This clause applies to both Cloud Hosted Applications and Client Hosted Applications.
3.2 The Applications may only be used for the internal business purposes of Client and its Group. Internal business purposes includes using the Applications as part of Client’s business services provided to its customers but shall not include the commercial sale or exploitation of the Applications or any part of them.
3.3 Client shall not itself or permit a third party to:
(a) access or use (directly or indirectly) any Application in a way that circumvents a contractual usage limit (such as numbers of Users or storage limits);
(b) copy an Application or any part, feature, function or user interface thereof; or
(c) access any Application in order to design or build (whether for internal or customer-facing use) a competing product or service.
3.4 The Applications may not be used for the purposes of benchmarking the Applications against other competing products and services, or for preparing assessments of the functionality or performance of the Applications.
3.5 The Applications may not be accessed by any person (including Client) who is a competitor of AnyData or is acting on behalf of any such competitor.
Application Feature Lists
3.6 Each Application shall provide the functionality set out in the relevant Application Feature List. AnyData may change an Application Feature List or the way in which certain features work but no change will materially reduce the functionality of an Application.
3.7 The Application Feature Lists set out the minimum technical requirements for use of the Applications. Client must ensure that it meets such requirements; the Applications may not operate correctly or at all if the requirements are not met.
3.8 Each Application Feature List is either attached to the Order Form, or if not attached is available on AnyData’s website.
3.9 Use of each Application is limited to the number of Users for that Application set out on the Order Form.
3.10 Client must assign a username and password to each User that Client authorises to use an Application. Users must be employees of Client or its Group. Provided that Client obtains AnyData’s prior written consent, Users may be consultants, contractors, agents and other third parties with which Client transacts business. Client is responsible for all use of the Applications by Users; any act or omission by a User shall be treated as an act or omission of Client.
3.11 Each User username and password is for a specific individual only and cannot be shared or used by more than one individual (whether directly or indirectly). Usernames may be reassigned to new individuals replacing former Users who no longer require use of the Application.
3.12 Client may add additional Users during the term at the same pricing as the original User pricing, prorated from the beginning of the month in which they are added for the portion of the term for that Application remaining at the time the Users are added; any term for any additional Users will terminate on the same date as the existing Users. The number of Users may not be decreased until the next renewal date.
Third Party Applications
3.13 AnyData may from time to time make available separate third party applications; these applications will be clearly identified as such. AnyData gives no warranties and assumes no liability for these applications. Client uses these applications at its own risk and subject to any terms and conditions which are notified to Client.
3.14 If Client is using or accessing an Application or Service using a free trial, then notwithstanding anything else in the Agreement, such use or access is provided by AnyData on as “as is” basis without any liability or obligation on AnyData’s part and without any warranty as to functionality or performance. At the end of the trial AnyData may delete any Client Data uploaded during the trial.
3.15 At the request of AnyData, Client shall within seven (7) days of receiving written notice to do so certify in writing to AnyData that its use of the Applications is in accordance with the terms of this Agreement.
3.16 AnyData may on reasonable notice inspect the computers on which the Applications are installed or which AnyData reasonably believes it might be installed either in person or by means of remote access. AnyData may inspect the type and amount of usage of the Applications. Such inspection shall be solely for the purpose of verifying that Client’s use of the Applications is in accordance with this Agreement.
4 Cloud Hosted Applications
4.1 This clause only applies to Cloud Hosted Applications.
4.2 AnyData shall provide the Cloud Hosted Applications from the start date set out on the Order Form and for the initial term set out on the Order Form. The term for a Cloud Hosted Application shall automatically extend by successive renewal terms (as set out on the Order form) unless either party gives the other party 90 days’ written notice that it does not wish to extend the term for that Cloud Hosted Application.
4.3 AnyData shall provide the Cloud Hosted Applications to meet the Service Levels.
4.4 Client retains ownership of all Client Data loaded into the Cloud Hosted Applications. Client grants to AnyData a perpetual and irrevocable licence to use for its own business purposes all Client Data in anonymised or aggregated form. AnyData will ensure that the Client Data is effectively anonymised or aggregated to ensure full compliance with all applicable privacy and data protection laws. Upon request within 30 days after the effective date of termination of a Cloud Hosted Application, AnyData will make available to Client for download a file of the Client Data held within that Cloud Hosted Application. After such 30-day period, AnyData shall have no obligation to retain or provide any of such Client Data and may thereafter, unless legally prohibited, delete all such Client Data.
4.5 Client shall procure the defence or, at its option, the settlement of any claim brought against AnyData, and pay any damages, fines and costs finally awarded against AnyData by a Competent Authority arising from any claim that the use by AnyData of the Client Data in accordance with this Agreement infringes the Intellectual Property Rights or other rights of any third party or is in breach of any Applicable Law.
4.6 Each Cloud Hosted Application has an associated storage limit for the Client Data stored in that Application. The storage limit is set out on the Order Form. If Client exceeds the storage limit then it shall be liable to pay an additional amount set out on the Order Form for additional storage. The charge for the additional storage will be prorated from the beginning of the month in which it is added for the portion of the term for the relevant Application remaining at the time the storage is added; any term for any additional storage will terminate on the same date as the relevant Application. The amount of storage may not be decreased until the next renewal date for the relevant Application.
4.7 Client shall not (i) use Cloud Hosted Applications to store or transmit any material which is unlawful or in violation of any third party rights, (ii) interfere with or disrupt the integrity or performance of any other Applications or third party data or (iii) attempt to gain unauthorized access to any Applications.
5 Client Hosted Application Licences
5.1 This clause only applies to Client Hosted Applications.
5.2 Subject to the terms of this Agreement including payment of all applicable charges, AnyData grants to Client a non-exclusive, non-transferable license to install and use the Client Hosted Applications from the start date set out on the Order Form and for the initial term set out on the Order Form. The licence term shall automatically extend by successive renewal terms (as set out on the Order form) unless either party gives the other party 90 days written notice that it does not wish to extend the licence term.
5.3 Client is licensed to use the Client Hosted Applications in machine-readable object code form only. The Client Hosted Applications can be installed on either (i) Client’s own equipment or (ii) the equipment of a service provider with whom Client has a written agreement that enables Client to comply fully with this Agreement.
5.4 Client shall take all measures in accordance with good IT industry practice to prevent unauthorised use or disclosure of the Client Hosted Applications. For the purposes of this clause, “good IT industry practice” means (i) using standards, practices, methods and procedures and (ii) exercising that degree of skill and care, diligence, prudence and foresight, which would in each case reasonably and ordinarily be expected from a skilled and experienced person in the IT industry.
5.5 Client may make a reasonable number of backups of the Client Hosted Applications in accordance with good IT industry practice.
5.6 Except as expressly permitted by this Agreement or authorized in writing by AnyData, Client shall not, nor permit others to:
(a) use, copy, modify, create derivative works from or distribute the Client Hosted Applications, or any copy, adaptation, transcription, or merged portion of them, except to the extent that the foregoing acts are permitted by law;
(b) decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Client Hosted Applications or any part of them, except to the extent that the foregoing acts are permitted by law;
(c) transfer, loan, lease, assign, rent, or otherwise sublicense the Client Hosted Applications;
(d) remove any copyright, proprietary or similar notices from the Client Hosted Applications (or any copies of them); or
(e) operate the Client Hosted Applications or any part of them for the benefit of or on behalf of any third party, including by way of application service provider services, timesharing arrangements, outsourcing services or bureau services.
5.7 Where Client is permitted by law to decompile the Client Hosted Applications (“decompile” having the meaning defined in section 50B(1) of the Copyright, Designs and Patents Act 1988), Client shall request the information necessary to create an independent program which can be operated with the Client Hosted Applications. AnyData shall respond to any such request within a reasonable time and shall indicate what information it is prepared to make available and on what terms (including as to costs).
Delivery of software
5.8 AnyData shall deliver the Client Hosted Applications (including any related documentation) to Client by making them available for download from AnyData’s website or by any alternative technical method agreed by the parties.
6.1 AnyData shall provide the Services to Client from the date and for the duration set out on the Order Form.
6.2 Client will provide, or arrange access to, copies of the Client Data required to provide the Services in the format, timeframes and frequencies set out on the Order Form.
6.3 Integrated Data Services and Other Services shall be provided with reasonable care and skill and in accordance with any timescales or service level set out in the Order Form.
6.4 The Intellectual Property Rights in any work product created by AnyData in providing the Services (other than work product derived from the Client Data) shall belong to AnyData but AnyData shall grant Client a licence to use such work product during the Term for the purposes of receiving the Services and using the Applications.
7.1 The Charges are set out on the Order Form.
7.2 In addition to the Charges, Client shall reimburse to AnyData all pre-agreed travel and accommodation expenses incurred by AnyData in connection with the provision of the Applications or Services. AnyData may add such expenses to its invoice.
8.1 The Charges do not include VAT which Client shall pay in addition to the Charges at the rate prevailing on the date that the relevant services were supplied.
8.2 The Charges do not include any additional taxes, duties, charges and levies which may become payable. Client shall pay such additional taxes, duties, charges and levies as and when due.
9.1 AnyData shall invoice Client the Charges in advance annually (or other frequency set out on the Order Form). The Charges are not refundable in any event.
9.2 If Client is sent an invoice for the Charges, Client shall pay the Charges without set-off or deductions within 30 days of the date of the invoice.
9.3 If Client fails to pay in full on the due date any sum payable by it under or in connection with the Agreement:
(a) AnyData may suspend provision of the Services or access to the Applications until payment in full is received; and
(b) interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 4% per annum above the base rate of Barclays Bank PLC from time to time.
9.4 All sums payable to AnyData under the Agreement shall become immediately payable on Termination.
9.5 If the Order Form provides for payment by credit card (or other electronic payment service) then Client authorizes AnyData to charge such credit card (or other electronic payment service) for all Charges listed in the Order Form for the initial term and any renewal term(s) until Client terminates the Agreement in accordance with these Master Terms & Conditions.
10.1 Each party shall comply with all Applicable Law relating to anti-bribery and anti-corruption including the Bribery Act 2010. The parties shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
10.2 Each party shall have and maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the relevant laws, and will enforce them where appropriate.
10.3 Each party shall promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by that party in connection with the performance of this Agreement.
10.4 From the Commencement Date until one (1) year after the termination of this Agreement, the Client shall not directly or indirectly (a) solicit, encourage or induce any current employee or consultant of AnyData to terminate his/her contract of employment or consultancy respectively or (b) employ or engage the services of such employees or consultants.
11.1 Each party represents and warrants that:
(a) it has the power and authority to enter into and perform the Agreement, which constitutes valid and binding obligations on it in accordance with its terms; and
(b) in performing its obligations under the Agreement it shall comply with all Applicable Law.
11.2 Other than those terms, conditions, warranties and representations which are set out in the Agreement, all other terms, conditions, warranties and representations, whether express or implied, are excluded to the maximum extent permitted by Applicable Law, and in particular AnyData does not warrant that:
(a) the operation of the Applications will be uninterrupted or error-free;
(b) the Applications or Services will meet Client’s particular requirements, whether or not those requirements have been made known to AnyData; or
(c) the Applications or Services are of satisfactory quality or fit for any particular purpose.
12 Intellectual Property Rights
12.1 The parties acknowledge that there shall be no change as a result of the Agreement in the ownership of Intellectual Property Rights in any material or items existing as at the Commencement Date, nor does the Agreement assign any Intellectual Property Rights which are created or developed by or on behalf of either party outside the Agreement or where such assignment is not expressly provided for in the Agreement.
12.2 Other than those rights expressly granted to Client by this Agreement, AnyData reserves all rights, title and interest in the Applications and Services.
12.3 Client grants to AnyData a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Applications and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client relating to the operation of the Applications or Services.
12.4 AnyData shall procure the defence or, at its option, the settlement of any claim brought against Client, and pay any damages and costs finally awarded by a Competent Authority arising from any claim that the use of the Applications or the work product from any Services (“Infringing Materials”) in accordance with this Agreement infringes the Intellectual Property Rights of any third party (an “IPR Claim”) provided that:
(a) Client promptly notifies AnyData in writing of any IPR Claim brought or threatened;
(b) Client gives AnyData sole authority to procure the defence or settlement of the IPR Claim; and
(c) Client makes no admissions in respect of the IPR Claim.
12.5 Client shall provide AnyData with all assistance reasonably required by AnyData in connection with any IPR Claim.
12.6 If Client’s use of the Infringing Materials in accordance with this Agreement is either (i) held by a Competent Authority to be infringing or (ii) in AnyData’s opinion reasonably likely to be infringing, AnyData shall at its option and expense:
(a) procure for Client the right to continue to use the Infringing Materials in accordance with this Agreement;
(b) modify the Infringing Materials so that they are not infringing (but without materially detracting from their functionality of performance), in which case Client shall cease using the Infringing Materials as soon as AnyData makes such modification available; or
(c) if in AnyData’s reasonable opinion neither of the above options is commercially viable, require Client to cease use of the Infringing Materials, in which case AnyData shall refund to Client a pro rata portion of any pre-paid Charges relating to the Infringing Materials.
12.7 AnyData’s obligations under this clause shall not apply to the extent that an IPR Claim arises from:
(a) any modification of the Infringing Materials by anyone other than the AnyData or its authorised representatives;
(b) the use of the Infringing Materials otherwise than in accordance with this Agreement; or
(c) the use of the Infringing Materials in combination with any software, hardware or data that has not been supplied or expressly authorised by AnyData where without such combination no IPR Claim would arise.
12.8 This clause states Client’s sole and exclusive remedy and AnyData’s entire liability in respect of any IPR Claim.
13 Data Protection
13.1 In this clause:
- “Data” means all Personal Data collected, generated or otherwise processed by AnyData as a result of, or in connection with, the provision of the Cloud Hosted Applications or Services.
- “Data Protection Laws” means:
- the General Data Protection Regulation (EU 2016/679) (“GDPR”) and any legislation which amends, re-enacts or replaces it in England and Wales;
- the Electronic Communications (EC Directive) Regulations 2003, together with any legislation which replaces it;
- any other data protection laws and regulations applicable in England and Wales; and
- any other rules and regulations relating to data privacy in any other jurisdiction with which AnyData has expressly agreed in writing to comply.
- “Data Protection Officer” has the meaning given to it under Article 37 of GDPR.
- “Data Subject” means an individual who is the subject of Personal Data.
- “EEA” means the European Economic Area.
- “Personal Data” has the meaning given to it under the Data Protection Laws.
- “Sub-Processor” has the meaning set out in Clause 7.
- “Supervisory Authority” means any data protection authority with jurisdiction over the processing of the Data.
13.2 AnyData shall comply with the requirements of the Data Protection Laws in carrying out the Services and providing the Cloud Hosted Applications.
13.3 AnyData shall only process Data for the purpose of providing its services to Client. It is acknowledged that Client determines the type of data which is input into the Services and AnyData has no knowledge of or control over the types of data input and does not review or monitor the data at any time.
13.4 Without prejudice to Clause 13.2 AnyData shall:
(a) process the Data only in accordance with the written instructions of Client, unless AnyData is required to process the Data for other reasons under the laws of the European Union (or a member state of the European Union) to which AnyData is subject. If AnyData is required to process the Data for these other reasons, AnyData shall inform Client before carrying out the processing, unless prohibited from doing so by relevant law;
(b) (without prejudice to Client’s obligations to AnyData set out in Clause 4.5) immediately inform Client if in AnyData’s opinion the Client’s instructions infringe the Data Protection Laws;
(c) have in place, and maintain throughout the Term, appropriate technical and organisational security measures against unauthorised or unlawful processing, use, access to or theft of the Data and loss or destruction of, or damage to, the Data to ensure that AnyData’s processing of the Data is in accordance with the requirements of the Data Protection Laws and protects the rights of the Data Subjects;
(d) ensure that all persons authorised by AnyData to process Data are bound by obligations equivalent to those set out in Clause 14 (Confidentiality) and this Clause 13 (Data Protection ); and
(e) if required under the Data Protection Laws, appoint a Data Protection Officer.
13.5 AnyData shall provide such assistance as Client reasonably requires in order for Client to:
(a) respond to requests from Data Subjects relating to AnyData’s data processing;
(b) ensure compliance with Client’s obligations under the Data Protection Laws, including in relation to:
(i) the security of processing; and
(ii) with the preparation of any necessary data protection impact assessments and the undertaking of any necessary data protection consultations.
Transfers outside of the EEA
13.6 AnyData shall not allow any Data to be processed or transferred to any country outside of the EEA (other than the UK) unless Client provides its written consent to such transfer.
13.7 AnyData shall not engage any third party, including a member of AnyData’s group, to carry out processing in connection with the Services (a “Sub-Processor”) without Client’s prior written consent. Client hereby consents to AnyData appointing a data centre or hosting provider at any location as a Sub-Processor. AnyData shall on request notify Client of the location of the data centre or hosting provider. Prior to allowing a Sub-Processor to process any Data, AnyData shall enter into a written agreement with the Sub-Processor under which the Sub-Processor is obliged to comply with terms equivalent to this Clause 13 (Data Protection ). AnyData remains fully liable to Client for any acts or omissions of any Sub-Processors relating to the processing of Data.
Information provision and data protection audits
13.8 On request, AnyData shall provide to Client all information reasonably required by Client to demonstrate AnyData’s compliance with Clause 13 (Data Protection) and the Data Protection Laws.
13.9 AnyData shall assist with any audit conducted by Client to assure AnyData’s compliance with the Data Protection Laws and the terms of this Clause 13 (Data Protection).
Dealings with supervisory authorities
13.10 AnyData shall promptly provide all assistance and information which is requested by any Supervisory Authority. AnyData shall immediately notify Client of any request that it receives from any Supervisory Authority for assistance or information, unless prohibited by relevant law.
13.11 AnyData shall maintain records in accordance with the Data Protection Laws of all processing activities carried out on behalf of Client. The records shall be in written electronic form. AnyData shall provide the records to Client on request.
13.12 AnyData shall notify Client promptly after becoming aware of any unauthorised or unlawful processing, use of, or access to the Data, or any theft of, loss of, damage to or destruction of the Data.
Return or destruction of Data
13.13 AnyData shall, at Client’s discretion, destroy or return all Data to Client on termination of this Agreement, and shall destroy or delete all copies it holds of the Data, unless (a) relevant local law to which AnyData is subject requires that Data to be retained or (b) the Agreement gives AnyData a right to continue to use such Data after termination of the Agreement.
13.14 If it is or becomes a requirement that, under the Data Protection Laws or other Applicable Law, this Clause 13 (Data Protection) must be governed by the laws of a member state of the European Union, and the governing law specified in this Agreement does not or ceases to satisfy this requirement, this Clause 13 (Data Protection) shall be governed by and construed in accordance with the laws of Ireland.
13.15 Client undertakes to pay all costs and expenses incurred by AnyData in providing any information, records, audit or assistance to Client, any Supervisory Authority or any Data Subject that is required by this Clause 13 (Data Protection). AnyData’s time shall be charged at AnyData’s standard rate for consulting services applicable from time to time.
14.1 “Confidential Information” means all information of a confidential nature in the disclosing party’s possession or control, whether created before or after the date of the Agreement, whatever its format, and whether or not marked “confidential”, including business plans, information relating to AnyData’s technology, Applications and Services and the terms of the Agreement, and negotiations relating to it, but not including the existence of the Agreement, or information which is or comes into the public domain through no fault of the other party, was already lawfully in the other party’s possession or comes into the other party’s possession without breach of any third party’s confidentiality obligation to the disclosing party, or is independently developed by or on behalf of the other party.
14.2 Each party shall keep the other party’s Confidential Information confidential, and shall use, copy and disclose that Confidential Information only in connection with the proper performance of the Agreement.
14.3 Nothing in the Agreement shall be construed so as to prevent one party from disclosing the other’s Confidential Information where required to do so by a Competent Authority, provided that, unless prevented by law, the first party promptly notifies the other party in advance and discloses only that part of the other party’s Confidential Information that it is compelled to disclose.
14.4 Each party shall tell the other immediately if it discovers that this Clause 14 (Confidentiality) has been breached and shall, on request, return to the other all of the other party’s Confidential Information which is in a physical form and destroy any other records containing the Confidential Information.
14.5 The obligations in this Clause 14 (Confidentiality) shall continue without limit in time.
15 Limitations of liability
15.1 Subject to Clause 15.3, AnyData’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence or otherwise, in any year shall be limited to:
(a) in respect of all liability relating to breach of Clause 13 (Data Protection), £1,000,000 (one million pounds); and
(b) in respect of all other liabilities, the Charges paid by Client to AnyData in that year.
15.2 Subject to Clause 15.3, AnyData shall not be liable to Client for any of the following types of loss or damage even if, in each case, AnyData has been advised of the possibility of such loss or damage:
(a) special, indirect or consequential loss;
(b) loss of profits, revenue, business, contracts, anticipated savings or goodwill; and
(c) loss or damage arising from loss, damage or corruption of any data.
15.3 The exclusions and limitation of liability set out in the Agreement do not apply to:
(a) liability arising from death or injury to persons caused by negligence;
(b) Client’s obligation to pay the Charges;
(c) Client’s breach of AnyData’s Intellectual Property Rights and Client’s obligations relating to Client Data under Clause 4.5;
(d) either party’s liability under Clause 14 (Confidentiality);
(e) either party’s liability arising as a result of fraud or Malpractice; and
(f) anything else which cannot be excluded or limited by Applicable Law,
to each of which no limit or exclusion applies.
16.1 Either party may terminate the Agreement with immediate effect by giving the other party notice if that other party commits a material breach of the Agreement which:
(a) is not capable of remedy; or
(b) is capable of remedy, but which the party in breach fails to remedy within 30 days of receiving notice from the innocent party specifying the breach and requiring the breach to be remedied.
16.2 Either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
(a) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation;
(b) is the subject of the commencement of any bankruptcy proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days of presentation);
(c) has an administrator, an administrative receiver or trustee appointed over all or any of its assets; or
(d) the equivalent of any of the events described in (a) to (c) above occurs in relation to such other party under the laws of any jurisdiction.
16.3 AnyData may terminate the Agreement in accordance with the provisions of Clause 17 (Force majeure).
16.4 For the purposes of this Clause 16 (Termination), a material breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance. In the Agreement, unless otherwise stated, time shall not be of the essence for the performance of any obligation.
16.5 On expiry or termination of this Agreement for whatever reason Client shall cease all use of the Applications and Services and shall return or, at AnyData’s option, destroy all copies of the Applications (including any documentation) in its possession or control. Client shall on request provide AnyData within 7 days of the request a letter signed by a director of Client confirming Client has complied with this Clause.
17 Survival of Clauses
Termination shall not affect either of the parties’ accrued rights or liabilities, or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such Termination, including all of the indemnities given by one party to the other party under the Agreement.
18 Force majeure
18.1 “Force Majeure Event” means an event beyond the reasonable control of a party (the “Affected Party”) which is not attributable to its fault or negligence, including acts of God, expropriation or confiscation of facilities, any form of government intervention, war, hostilities, rebellion, terrorist activity, local or national emergency, strikes and other industrial action, sabotage or riots, floods, fires, explosions or other catastrophes, unavailability of network connectivity and failure of data centre or hosting facilities.
18.2 AnyData shall not be responsible for any failure to carry out any of its duties under the Agreement to the extent that the failure is caused by a Force Majeure Event.
18.3 If the Force Majeure Event prevents AnyData from materially complying with its obligations under the Agreement and it continues for more than 60 days, AnyData may terminate the Agreement with immediate effect by giving Client notice.
19.1 Client may assign or transfer all or any of its rights and obligations under the Agreement to any third party with the prior written consent of AnyData (such consent not to be unreasonably withheld).
19.2 AnyData may assign or transfer all or any of its rights and obligations under the Agreement to any member of the AnyData Group or any purchaser of (i) the rights to any Application or (ii) any part of AnyData’s business.
20 Third parties
20.1 The parties do not intend any third party to have the right to enforce any provision of the Agreement under the Contracts (Rights of Third parties) Act 1999 or otherwise, except where such third party is an assignee of rights under the Agreement and such assignment is in accordance with Clause 19 (Assignment).
20.2 The parties may terminate or vary the Agreement without the consent of any third party.
21 Entire agreement
21.1 The Agreement is the entire agreement between the parties, and replaces all previous agreements and understandings (including any confidentiality or non-disclosure agreements) between them, relating to its subject matter.
21.2 The parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those which are expressly stated in the Agreement.
21.3 Neither party shall have any remedy in respect of any statement not set out in the Agreement upon which it relied in entering into the Agreement, unless the statement was made fraudulently.
22 Relationship of the parties
Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
A failure or delay in exercising any right or remedy under the Agreement shall not constitute a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not prevent the further exercise of that right or remedy. A waiver of a breach of the Agreement shall not constitute a waiver of any other breach.
No variation of the Agreement shall be effective unless it is in writing and signed by or on behalf of each party.
25.1 If there is any conflict or inconsistency between the Order Form, the Master Terms & Conditions and the other documents incorporated into the Agreement, the provisions of the Order Form prevail, followed by the Master Terms & Conditions and then any other document incorporated into the Agreement.
26.1 The illegality, invalidity or unenforceability of any provision of the Agreement under any law of any jurisdiction shall not affect or impair the legality, validity or enforceability of the rest of the Agreement, nor the legality, validity or enforceability of that provision under the law of any other jurisdiction.
26.2 If any provision of the Agreement is held to be illegal, invalid or unenforceable under any law of any jurisdiction, the parties shall negotiate in good faith to agree any revision necessary to make the provision legal, valid and enforceable so as best to give effect to the intention of the parties as recorded in the Agreement.
27 Cumulative rights
The rights and remedies expressly conferred by the Agreement are cumulative and additional to any other rights or remedies a party may have.
Each party shall pay the costs and expenses incurred by it in connection with the preparation of the Agreement.
The Agreement may be executed in any number of counterparts, which shall each constitute an original and together constitute one agreement. If the Agreement is executed in counterpart, it shall not be effective unless each party has executed at least one counterpart. A counterpart may be signed and delivered electronically (including using exchange of PDF documents by email).
30.1 Communications under the Agreement shall be in writing and delivered by hand, or sent by email or recorded delivery post to the relevant party at its address as set out in the Agreement. Without evidence of earlier receipt, communications are deemed received: if delivered by hand or sent by email, at the time of delivery; if sent by recorded delivery, at 9.00 am on the second Business Day after posting.
30.2 Any communication from Client relating to termination of the Agreement or notifying AnyData of a breach of the Agreement must be sent by recorded delivery (requiring a signature on receipt) to AnyData’s principal place of business set out in the Agreement.
31 Governing law and jurisdiction
31.1 The Agreement and any non-contractual obligations arising in connection with it are governed by and construed in accordance with English law.
31.2 Subject to Clause 31.4, the English courts have exclusive jurisdiction to determine any dispute arising in connection with the Agreement, including disputes relating to any non-contractual obligations.
31.3 Each party irrevocably waives any objection which it may now or later have to proceedings being brought in the English courts (on the grounds that the English courts are not a convenient forum or otherwise).
31.4 Nothing in the Agreement shall prevent a party from applying to the courts of any other country for injunctive or other interim relief.