Updated at 14.5.2024

1. Definitions and interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement – the Order and the Terms and Conditions;

Authorised User – any of your employees, contractors or consultants granted access to the Software and/or the Services together with any employees, contractors or consultants of any authorised third party whose access is agreed between the parties and as set out in the Order;

Business Day – a day which is not a Saturday, Sunday or a bank holiday in England;

Business Hours – Monday to Friday 08.00 to 17.30 in England (excluding bank holidays in England);

Commencement Date – the subscription commencement date for the Software and Services as specified in the Order, or the date any payment is due or any Services are provided, whichever date is the earlier;

Contract Year – each successive period of 12 months from the Commencement Date;

Customer Cause – any breach of your obligations under this Agreement or any other default, act, omission or negligence by you, for which you are liable under law;

Data Subjects – has the meaning given to that term in the Data Protection Laws in force from time to time and as described in clause 31.2;

Data Protection Laws – the GDPR (and any legislation implemented in connection with the GDPR), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the UK GDPR and any replacement legislation coming into effect from time to time and any other applicable laws relating to the processing of Personal Data;

Documentation – the user documentation for the Software, including all training and know-how materials, in all cases as updated from time to time;

End Date – the applicable expiry/end date of the Term as set out in the Order;

Feedback – any feedback, suggestions or requests that you provide to us regarding the Software;

Fees – the Subscription Fee and the Professional Services Fee;

GDPR – Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;

Hosting Terms – the applicable terms governing the hosting environment on which the Software is maintained by us, accessible at: https://www.microsoft.com/licensing/docs/customeragreement;

Incident – non-compliant behaviour of the Software;

Insolvency Event – if a party:
a) makes any voluntary arrangement with its creditors or becomes bankrupt or enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
b) has a security holder take possession, or a receiver or administrative receiver appointed, over all or any material part of its property or assets; or
c) has anything analogous to any of the foregoing occur under the law of any jurisdiction; or ceases to carry on business;
Intellectual Property Rights – patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, moral rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

Maintenance and Support Services – our standard maintenance and support services, as described in clause 6 and/or the Order;

Order – any order agreed between the parties for Software, Services and any Third Party Apps;

Personal Data – has the meaning given to that term in the Data Protection Laws in force from time to time;

Professional Services – any professional services set out in the Order;

Professional Services Fee – the fee payable for the provision of Professional Services as set out in the Order;

SaaS Services – cloud deployed Software subscription services;

Services – Maintenance and Support Services, SaaS Services and the Professional Services, as applicable;

Software – the computer programs, products and software listed in the Order and any updates made during this Agreement along with all Feedback (excluding Third Party Apps);

Subscription Fee – the fee payable, as set out in the Order, for access to the Software in accordance with clause 3, SaaS Services as applicable, and the Maintenance and Support Services;

Term – the period from the Commencement Date until the subscription end date as set out in the Order;
Terms and Conditions – these terms and conditions;

Third Party Apps End User Licence Agreement – means the terms governing the use of Third Party Apps described in the Order (as applicable) and accessible at https://www.cluesoftware.com/thirdpartyeulas/ ;

Third Party Apps – third party applications;

Your Data – means all data (including Personal Data) that is inputted by you or your Authorised Users into the Software and/or Services or which is derived from such data (including any copies).
UK GDPR – the GDPR as it forms part of the laws of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018;

Usage Data – autogenerated, anonymised machine or system data on the performance, operation, utilisation or availability of the Software and/or Services.

1.2 Unless the context otherwise requires:
1.2.1.1 words in the singular shall include the plural and in the plural shall include the singular;
1.2.1.2 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and any subordinate provision made under that legislation;
1.2.1.3 a reference to one gender shall include a reference to the other genders;
1.2.1.4 references to including, include, in particular, for example or any similar expression shall be construed as illustrative and as being by way of example and shall not limit the meaning of any preceding words ;
1.2.1.5 clause headings shall not affect the interpretation of this Agreement;
1.2.1.6 an obligation not to do something includes an obligation not to agree or allow it to be done;
1.2.1.7 reference to “writing” and “written” includes email; and
1.2.1.8 references to “you” and “your” are references to the customer as set out in the Order and references to “us” and “we” are references to Clue Computing Company Limited.

1.3 In the case of conflict or inconsistency between any provision contained in the Terms and Conditions and any provision contained in the Order, the provision in the Order shall take precedence.

2. Approved Representatives
2.1 You warrant that those individuals who are named as approved representatives for particular purposes (Approved Representatives) in the list that you shall provide to us (or as otherwise notified by you to us in writing) are authorised to conduct the activities for which they are named as Approved Representatives.

2.2 In particular, but without limitation, you warrant that the Approved Representatives named for the purposes of placing and/or signing the Order are authorised to enter into and bind you to this Agreement. Further, but without limitation, the parties are bound by this Agreement upon the last party signing the Order.

2.3 You must inform us immediately of any change in identity of any Approved Representative(s).

3. Access to the Software and Customer restrictions
3.1 In consideration of payment of the Subscription Fee, we grant to you and your Authorised Users a non-exclusive, non-transferable, non-sub-licensable right to access and use the Software and the Documentation for the internal business purposes of you and any authorised third parties named in the Order, for the Term and in accordance with the Order.

3.2 You shall ensure that all Authorised Users comply with the terms of this Agreement and you shall be liable in respect of any breach of the terms of this Agreement by any Authorised User. We shall be entitled to recover losses suffered as a result of any such breach as if the breach had been committed by you.

3.3 You shall ensure that the number of Authorised Users does not exceed the number set out in the Order without our prior written consent. The same access credentials shall not be used by more than one individual, but individuals who are Authorised Users may be replaced by other individuals using their own access credentials, provided that the individual user being replaced is no longer accessing the Software.

3.4 We shall use reasonable endeavours to perform our obligations as set out in the Order and/or in this Agreement in a timely manner, however any specified date for performance shall be an estimate only.

3.5 You hereby accept the application of the third-party hosting terms as specified in the Hosting Terms in relation to Microsoft’s hosting services, which shall be incorporated into and form part of this Agreement. Without limiting the foregoing, our obligations to you in relation to Microsoft’s hosting services shall not exceed Microsoft’s obligations to us as set out in the Hosting Terms.

3.6 To the extent that any Third Party Apps are provided for use by you, you agree that the provision of such software and related data processing is subject to the Third Party Apps End User Licence Agreements and you shall not do or omit to do anything which may constitute a breach or default of such terms.

3.7 You shall not, and you shall not permit any third party to:
3.7.1 sub-license (unless otherwise agreed by us in writing and set out in the Order), rent, lease, lend, or sell the Software and related Services;
3.7.2 translate, modify, adapt or create derivative works of the Software;
3.7.3 reverse-engineer, decompile, disassemble (except to the extent such rights cannot be validly waived by law) the Software or otherwise attempt to derive the source code of the Software;
3.7.4 misappropriate, mis-use or infringe our Intellectual Property Rights and/or use its access to the Software and related Services in order to develop or build a product or services which compete with the Software; nor
3.7.5 use, reproduce, distribute or transfer (with or without consideration) the Software except as provided in this Agreement.

3.8 You will ensure that you and your Authorised Users employ industry standard anti-virus and information security methods in order to prevent viruses, Trojan horses, spyware, or other malware from being uploaded into or downloaded from the SaaS Services and/or Software, to protect Your Data, your hardware devices and infrastructure (including where used to hold Your Data), and you and your Authorised Users shall not circumvent any security measures put in place for the Services.

3.9 You shall take appropriate technical and organisational measures to protect Your Data when extracted or downloaded from the SaaS Services and/or Software onto your or your Authorised User’s hardware devices and software infrastructure.
3.10 The security, integrity and confidentiality of Your Data is at your sole risk when outside of our control due to your acts or omissions. Without limiting the foregoing this includes where you download Your Data to your local device, or you disclose or transmit Your Data to a third party.

3.11 We may monitor your use of the Software, in order to facilitate our operation of the Services and/or to verify compliance with this Agreement. We may retain, compile and aggregate Usage Data for our own internal use only, which shall not contain your Personal Data or Confidential Information.

4. Duration
4.1 This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 15, for the Term. The parties may agree in writing to renew this Agreement either on the same terms or on such revised terms as may be agreed in writing between the parties.

5. Availability
5.1 We will take reasonable endeavours to ensure that the Software will be made available 24 hours a day, 7 days a week with 99.9% up time, except for:
5.1.1 planned maintenance carried out outside of the Business Hours; and
5.1.2 unscheduled maintenance, provided that we have used reasonable endeavours to give you at least four (4) hours’ notice in advance.

6. Maintenance and Support Services

6.1 Maintenance Services
6.1.1 The Maintenance Services shall include the provision of routine maintenance in connection with the Software, including:
a) updates to all Software maintenance releases and patches during the Term; and
b) upgrades to all Software new version releases during the Term.
6.1.2 We are not obliged to provide upgrades to the Software but may do so from time to time in our sole discretion.

6.2 Support Services
6.2.1 We shall make available, during the Business Hours during the Term, an email and telephone support facility for the purposes of:
a) reasonable assistance to you with the configuration and proper use of the Software; and/or
b) determining the causes of any Incidents and using reasonable endeavours to remedy errors in the Software (including by providing a reasonable workaround that does not adversely impact your use of the Software or its functionality).
6.2.2 You and/or your Authorised Users shall request Support Services by contacting our helpdesk at the details below:
a) email: support@cluesoftware.com
b) web: cluesoftware.force.com
6.2.3 Each request for Support Services shall include a description of the problem and the start time of the Incident and any other relevant information, sufficient to enable us to assess the request.
6.2.4 The Support Services shall not include:
a) support for third party systems, Third Party Apps, applications or infrastructure;
b) support for any operating system on your platform or other third party software used by you or telecommunications links;
c) support for any of your hardware.
6.2.5 You shall provide us with:
a) prompt notice of any issues; and
b) such output and other data, documents, information, assistance, personnel and remote access as reasonably necessary to assist us to respond to the request for Support Services.
6.2.6 You shall take all reasonable steps to co-operate with the implementation of upgrades in a timely manner.

6.3 Feedback
6.3.1 You acknowledge that the Software is an off the shelf product and we do not carry out any bespoke development for any of our customers and the development of the Software is at our sole discretion. We may solicit, from time to time, inputs from you for roadmap planning. You agree that you are not relying on delivery of future functionality or roadmap outputs by us when entering into this Agreement.
6.3.2 We encourage all of our customers to provide us with Feedback. If you provide any Feedback, we may, at our discretion, to take such Feedback into account in future maintenance and/or new version releases in accordance with clause 6.1. We are under no obligation to take any Feedback into account and you acknowledge that all Intellectual Property Rights subsisting in Feedback and any resulting modifications or developments to the Software belong to us in accordance with clause 14.1. For the avoidance of doubt, Feedback shall not constitute your confidential information and may be freely used and exploited by us.

7. Professional Services
7.1 We shall provide Professional Services (if applicable) in accordance with the Order and these Terms and Conditions.

7.2 During the Term, we may agree with you the provision of additional Professional Services which shall be agreed between the parties and shall be as set out in a Professional Services Order. The Professional Services Order shall set out the scope of the additional Professional Services and the applicable Professional Services Fee. Any Professional Services Order that you and we agree will be subject to these Terms and Conditions. We are under no obligation to carry out any Professional Services that are not set out in the Professional Services Order. In the event that the scope or duration of the Professional Services Order changes, the parties acting in good faith shall invoke the change process set out in Annex 1.

8. Provision of Services
8.1 We shall provide the Services using reasonable skill and care, in a professional manner, and using appropriately experienced and qualified personnel.

8.2 We shall allocate a sufficient number of appropriately experienced and qualified personnel in order to provide the Services.

8.3 You shall provide us in a timely manner with all information, documentation and assistance we reasonably require to enable us to perform the Services. In the event that non-conformance with any of our obligations under this Agreement is due to a Customer Cause, without limiting any other rights and remedies, we shall be entitled to relief from liability and/or to reasonable additional time needed to provide the Services.

8.4 We are not responsible for any delays, delivery failure or outages over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities.

9. Fees
9.1 You shall pay:
9.1.1 the Subscription Fee in accordance with the payment terms set out in the Order (together with any fees for additional Authorised Users set out in the Order, if applicable); and
9.1.2 the Professional Services Fee in accordance with the payment terms set out in the Order.

9.2 In addition to the Fees, in the event that you require Services to be provided on site, but which could otherwise have been provided remotely, you shall pay to us all reasonable travelling and accommodation expenses we or our staff reasonably and properly incur in the course of providing such Services. You shall pay such expenses within 30 days after we provide to you receipts for such expenses.

9.3 All sums payable under this Agreement are exclusive of VAT or any relevant local sales or withholding taxes, for which you shall be responsible.

9.4 If you fail to make any payment due to us under this Agreement by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

9.5 If you fail to make a payment due to us under this Agreement by the due date for payment (unless payment is disputed in good faith and has been referred to dispute resolution in accordance with clause 20 (Dispute Resolution)), without liability to you, we may upon 10 Business Days’ prior written notice to you suspend all or part of the Services until such payment is made.

9.6 Without limiting any other rights or remedies, in the event that you use the Software and/or Services after the End Date without a current agreement with us for such use, without liability to you, we may suspend all or part of the Services until an agreement has been entered into by both parties for your use of such Software and/or Services after the End Date, which is reasonably acceptable to both parties (and any corresponding purchase order mandated by you has been provided to us). The commencement date of such agreement shall be the day immediately after the End Date.

9.7 Payments due to us under this Agreement shall be made without any set-off, withholding or deduction.

10. Confidentiality
10.1 Each party shall (and you shall procure that any Authorised Users shall), during the term of this Agreement and thereafter, keep confidential all and shall not use for its own purposes (other than as is necessary for implementation of this Agreement or the exercise of its rights under this Agreement) nor without the prior written consent of the other disclose to any third party (except as may be required by any law, court of competent jurisdiction or any other legal or regulatory authority) any information of a confidential nature relating to the business, affairs, customers, suppliers, operations, plans, financial information, know-how, products, processes, technical information and software of the disclosing party, including trade secrets and information of commercial value, information that is clearly designated as being confidential (collectively “Confidential Information”) and any information derived from the Confidential Information, and which one party discloses to the other party. The foregoing does not apply where the information is already or subsequently becomes public knowledge other than by breach of this Agreement, or is already in the possession of the other party without restrictions as to its disclosure, or subsequently comes lawfully into the possession of the other party from a third party who is under no obligation restricting its disclosure.

10.2 Each party may disclose Confidential Information to their employees, officers, professional advisors, contractors or agents on a need-to-know basis, provided that the recipients are aware of its confidential nature and are subject to duties of confidentiality on terms substantially similar to those set out in this clause 10. The disclosing party shall remain liable for the acts and omissions of such recipients.

10.3 The receiving party shall establish and maintain adequate security measures to safeguard the Confidential Information from authorised disclosure or use.

10.4 Each party shall notify the other party without delay if it becomes aware of any unauthorised disclosure of Confidential Information.

10.5 The obligations of each party under this clause regarding use and disclosure of confidential information shall not terminate until three (3) years after the expiry or termination of this Agreement.

11. Data Protection
11.1 During the Term of this Agreement in connection with the provision of the Software and/or the Services, we may be required to process Personal Data on your behalf. If this is the case, a description of the Personal Data and processing activities is set out in Clause 31 (Data Processing).

11.2 To the extent that we process Personal Data on your behalf in the course of providing the Software and/or the Services:
11.2.1 each party warrants and undertakes that it will comply with Data Protection Laws;
11.2.2 any Personal Data transferred to us shall be accurate, complete and up-to-date and you warrant that you have the right to allow us to process it in accordance with this Agreement;
11.2.3 we shall process the Personal Data in accordance with your written instructions, and you hereby instruct us to process the Personal Data to the extent necessary to enable us to fulfil our obligations under this Agreement;
11.2.4 we shall inform you promptly if, in our opinion, any instructions that you provide to us infringe Data Protection Laws;
11.2.5 we shall not transfer any Personal Data to a country outside the United Kingdom or European Economic Area unless appropriate safeguards have first been put in place in conformance with Article 46 of the UK GDPR or GDPR (as applicable), where the transfer is otherwise permitted under Data Protection Laws or where you have given us a specific instruction to do so;
11.2.6 we shall take reasonable steps to ensure the reliability and integrity of any of our personnel who shall have access to your Personal Data and ensure that any persons we use to process Personal Data are subject to legally binding obligations of confidentiality in relation to the Personal Data;
11.2.7 you consent to us appointing the sub-processors set out in Clause 31 (Data Processing) or otherwise agreed in writing between you and us. We shall give you notice of any changes to such sub-processors and provide you with a reasonable opportunity to object to such a change. If you object to a change in sub-processor, this may mean that we cannot provide all or part of the Software or the Services;
11.2.8 we shall take appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental or unlawful loss or destruction of, alteration or damage to, or unauthorised disclosure of or access to Personal Data, including, without limitation, all such measures that may be required to ensure compliance with Article 32 of the UK GDPR;
11.2.9 taking into account the nature of the data processing activities that we undertake and the information available to us, we shall provide reasonable assistance and co-operation to enable you to fulfil your obligations to respond to requests from individuals exercising their rights under Data Protection Laws and in ensuring your compliance with the obligations set out under Article 33 of the UK GPDR;
11.2.10 taking into account the nature of the data processing activities that we undertake and the information available to us, we shall notify you promptly and in any event within 48 hours if we become aware of any breach of security by us or by a sub-processor relating to the Personal Data processed under this Agreement to ensure compliance with the obligations under Article 33 of the UK GDPR, and we shall notify you promptly if we receive any notification, complaint, notice or communication which relates directly to the processing of your Personal Data under this Agreement or to either party’s compliance with the Data Protection Laws, and provide reasonable co-operation, information and assistance to you in relation to any such breach, complaint, notice or communication;
11.2.11 taking into account the nature of the data processing activities we undertake and the information available to us, we shall provide reasonable assistance to you with carrying out data protection impact assessments and consulting with relevant supervisory authorities where such assessments and/or consultation are required pursuant to the Data Protection Laws, provided that the scope of such assistance shall be agreed between you and us in advance and you shall pay our reasonable costs incurred in providing such assistance;
11.2.12 on termination of this Agreement, as agreed between the parties, we shall securely delete or return to you all Personal Data and delete all existing copies of the Personal Data except to the extent we are required to retain copies of the Personal Data to comply with applicable laws;
11.2.13 we shall make available to you all information reasonably necessary to demonstrate compliance with our obligations under this clause 11 and allow for and contribute to audits, including inspections, conducted by you or your authorised representatives, provided that such audit shall take place at your cost, no more than once per year (unless mandated by a relevant supervisory authority), within normal business hours and on reasonable notice, with minimal disruption to our business and subject to appropriate confidentiality undertakings; and
11.2.14 we shall include in all contracts with sub-processors provisions that are substantially equivalent to those set out in this clause 11.2 and remain liable to you for any acts or omissions of our sub-processors.

12. Warranties
12.1 We warrant and undertake that:
12.1.1 we have the right to enter into this Agreement and to grant you and your Authorised Users a right to access and/or use the Software as set out in this Agreement;
12.1.2 the Software will be free from material errors and conform in all material respects to the description in the Order during the Term; and
12.1.3 to the extent that we provide access to the Software we will use industry standard anti-virus and information security methods.

12.2 Each party shall comply with all applicable laws and regulations applicable to this Agreement

12.3 No warranty is made that the operation of the Software and/or the Services will be uninterrupted, error free or shall meet your particular requirements.

12.4 Subject to clauses 12.1 and 12.2, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.

13. Limits of liability
13.1 Subject to clause 13.2:
13.1.1 neither party shall in any circumstances have any liability to the other for any loss of profits (except profits in respect of the Fees), anticipated savings, business, business opportunity, revenue, reputation, goodwill (in all cases whether direct or indirect) or for any special, indirect or consequential loss and whether arising in contract, tort, (including negligence and breach of statutory duty) under an indemnity or otherwise howsoever; and
13.1.2 each party’s total aggregate liability to the other under or in connection with this Agreement, whether arising in contract, tort (including negligence and breach of statutory duty) under an indemnity or otherwise howsoever and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fees paid for the Contract Year during which the liability arises or £50,000 (whichever is the higher).

13.2 The exclusions and limitations in clause 12.4 and clause 13.1 shall apply to the fullest extent permissible at law, but neither party excludes or limits liability for:
13.2.1 death or personal injury caused by its negligence or that of its officers, employees, contractors or agents;
13.2.2 fraud or fraudulent misrepresentation;
13.2.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
13.2.4 a breach of clause 3.7.4 or a failure to pay the Fees due under this Agreement; or
13.2.5 any liability which may not be excluded or limited by applicable law.

14. Intellectual property rights
14.1 All ownership of and Intellectual Property Rights in and to the Software, the Documentation any Feedback and Software configuration (including all modifications and derivative works thereto) are and shall remain vested in us or our licensors. We shall own all Intellectual Property Rights created by us under this Agreement. You and any Authorised Users shall have no rights in or to the Software, the Documentation, any Feedback and Software configuration other than right to use these in accordance with the provisions of this Agreement during the Term.

14.2 We shall own all Intellectual Property Rights in any Feedback and any resulting work, modifications or developments, and you hereby assign all Intellectual Property Rights in any Feedback to us and waive any moral rights thereto.

14.3 We shall have no rights in or to your Intellectual Property Rights, except for the rights expressly granted to us in this Agreement. You hereby grant us a non-transferable, non-exclusive, and royalty free licence during the Term to use such of your Intellectual Property Rights as are necessary to enable us to fulfil our obligations under this Agreement.

14.4 We will defend you or, at our option, settle any claim or action brought against you by a third party alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK Intellectual Property Rights of a third party (Claim) and we shall indemnify you against any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against you as a result of or in connection with any such Claim. Clause 14.4 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by you other than in accordance with the terms of this Agreement, use of the Software in combination with any hardware or software not supplied or specified by us if the infringement would have been avoided by the use of the Software not so combined, use of a non-current release of the Software if you prevent us from implementing a current release of the Software and the infringement would have been avoided by such implementation, or where the Claim is attributable to Your Data that we host or store under this Agreement for you.

14.5 If any third party makes a Claim, or notifies an intention to make a Claim against you, our obligations under clause 14.4 are conditional on you:
14.5.1 as soon as reasonably practicable, giving written notice of the Claim to us, specifying the nature of the Claim in reasonable detail;
14.5.2 not making any admission of liability, agreement or compromise in relation to the Claim without our prior written consent (such consent not to be unreasonably conditioned, withheld or delayed);
14.5.3 giving us and our professional advisers access at reasonable times (on reasonable prior notice) to your premises and your officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable us and our professional advisers to examine them and to take copies (at our expense) for the purpose of assessing the Claim; and
14.5.4 subject to us providing security to you to your reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as we may reasonably request to avoid, dispute, compromise or defend the Claim.

14.6 If any Claim is made, or in our reasonable opinion is likely to be made, against you, we may at our sole option and expense:
14.6.1 procure for you the right to continue to use the Software (or any part thereof) in accordance with the terms of this Agreement;
14.6.2 modify the Software so that it ceases to be infringing;
14.6.3 replace the Software with non-infringing software; or
14.6.4 terminate this Agreement,(or you may terminate this Agreement in the case that an outcome described in 14.6.1, 14.6.2 or 14.6.3 is not achieved in material respects), immediately by notice in writing and we shall refund any of the Fees paid as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination). Upon termination your rights to access and use the Software shall automatically terminate.

14.7 This clause 14 constitutes your sole and exclusive remedy and our only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 13.1 to 13.2.
14.8 Both parties shall execute and deliver or procure the execution and delivery of such documents and perform such acts as may be required for the purpose of giving full effect to this clause.

15. Termination
15.1 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:
15.1.1 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 30 days after being notified in writing to make such payment;
15.1.2 the other party commits a material breach of any other term of this Agreement (including a material breach by any Authorised Users) which breach is irremediable or (if such breach is remediable fails to remedy that breach within a period of 30 days after being notified in writing to do so); or
15.1.3 the other party suffers an Insolvency Event.

15.2 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.

15.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

15.4 On termination for any reason:
15.4.1 all rights granted to you and any Authorised Users under this Agreement shall cease;
15.4.2 you shall, and shall procure that any Authorised Users shall, immediately cease all use of the Software, Services and Documentation, and you shall no longer access it;
15.4.3 you shall immediately pay to us any sums due to us under this Agreement; and
15.4.4 you shall, and shall procure that any Authorised Users shall, immediately destroy or return to us (at our option) all copies of the Software and Documentation then in your or their possession, custody or control and, in the case of destruction, certify to us that you have, and/or all Authorised Users have, done so.
15.4.5 Without limiting clause 11.2, upon request we shall provide a copy of your data held within the Software to you within 14 Business Days of expiry or termination of this Agreement in an industry standard electronic format, without additional charge.

16. Right to suspend
16.1 We may in exceptional circumstances suspend your use of the SaaS Services without liability if you are in breach of this Agreement and as a result, your continued use is likely to result in immediate and ongoing significant harm to the security or integrity of the SaaS Services, by written notice to you. In the event of a suspension, the parties shall work together in good faith to resolve the issue promptly. We shall minimise the duration and scope of any suspension as reasonably possible in the circumstances. All Fees remain payable during any period of suspension.

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

18. Entire agreement
18.1 This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior representations (unless fraudulent), agreements, arrangements and understandings between the parties (whether written or verbal) relating to that subject matter. By accepting this Agreement you are also accepting the application of all third party hosting terms and conditions in relation to the Hosting Services which are referenced in the Hosting Terms and your use of any Third Party Apps described in the Order will be subject to the applicable Third Party Apps End User Licence Agreement. This Agreement shall prevail over any additional, conflicting or inconsistent terms set out in any purchase order or other documents provided by you.

19. Variation
19.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives), using the change process set out in Annex 1 below. If the outcome of this change process is that we provide additional or different Software and/or Services, both parties shall enter into a further Order documenting this.

20. Dispute Resolution
20.1 In the first instance the parties will seek to resolve any dispute by escalating it. There shall be two levels of escalation. The first level of escalation is to each party’s first level of escalation representatives (who shall be specified by the respective parties at that time) with day-to-day management of the Agreement. The second level of escalation is to senior individuals of each party. An individual representing a party at one level may not be made available by a party to represent it at a higher level.

20.2 A meeting of the representatives at the first level shall take place no later than 5 (five) Business Days after the dispute arises. If the dispute has not been resolved within 5 (five) Business Days of the first meeting at the first level, the dispute shall be referred to the next level, and the representative at that next level shall meet within 5 (five) Business Days of such referral.

20.3 If a dispute is referred to the second level, and that dispute has not been resolved within 5 (five) Business Days of the first meeting at the second level, either party may refer the dispute to mediation.

20.4 Unless otherwise agreed between the parties, within 14 (fourteen) Business Days of a referral to mediation, the mediator will be nominated by CEDR (the Centre for Effective Dispute Resolution). To initiate the mediation, a party must serve notice in writing to the other party to the dispute, referring the dispute to mediation. The mediation will start as soon as possible after such referral.

20.5 If for any reason the dispute is not resolved within 30 (thirty) Business Days of referral to mediation, a party may then commence proceedings in relation to the dispute. Nothing in this clause prevents either party from commencing court proceedings relating to a dispute at any time where that party seeks interim or final injunctive relief or specific performance.

21. Modifications to the Software and/or Services
21.1 Nothing in this Agreement prevents us from updating and modifying the Software and/or Services, provided that this does not adversely affect the Software and/or Services’ performance and is in conformance with clauses 12.1 and 12.2 (Warranties).

22. Survival
22.1 In addition to the rights and obligations which survive as provided for elsewhere in this Agreement, clauses 10 (Confidential Information), 13 (Limitation of Liability), 14 (Intellectual Property Rights) and clause 31 (Data Processing) shall survive any termination or expiry of this Agreement, including in respect of any services and/or use of our software after the End Date.

23. Severance
23.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

24. Counterparts
24.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

25. Third-party rights
25.1 Unless otherwise agreed by the parties in writing, a person who is not a party to this Agreement shall not have any rights or benefits whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

26. Assignment, other dealings and relationship of the parties
26.1 Neither party may:
26.1.1 sub-license, assign or novate the benefit or burden of this Agreement in whole or in part; or
26.1.2 deal in any other manner with any or all of its rights and obligations under this Agreement; without the prior written consent of the other party.
26.1.3 nothing in this Agreement shall be construed or implied to create a relationship of partnership, joint venture, agency, employment, franchise or any relationship other than that of independent contracting parties. Neither party shall have the power or authority to bind or obligate the other party.

27. Force majeure
27.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, including as a result of consequence of any act of God, act or war or terrorism, failure or interruption of the internet or telecommunication infrastructure, destruction or cessation of general market activity or other similar occurrence. In such circumstances the affected party shall use reasonable endeavours to mitigate the effect of such events. The affected party be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three (3) months, the party not affected may terminate this Agreement by giving 30 days’ written notice to the affected party.

28. Notices
28.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
28.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
28.1.2 sent by email to a pre-notified email address

28.2 Any notice shall be deemed to have been received:
28.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
28.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
28.2.3 if sent by email, at 9.00 am on the next Business Day after transmission provided no non-delivery message is received.

28.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

29. Governing law and jurisdiction
29.1 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.

29.2 The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

30. Anti-Bribery
30.1 Each party shall:
30.1.1 comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including to the Bribery Act 2010 (“Relevant Requirements”);

30.2 have and shall 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 Requirements, and will enforce them where appropriate; and
30.2.1 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by us in connection with the performance of this Agreement.

31. Data Processing Description
31.1 Types of Personal Data – Personal Data can be recorded directly in standard fields, in customer created fields and in files that are uploaded into the Software. Personal Data may include a name, address, phone number, email address, information about a person’s physical or mental health, sexual orientation, racial or ethnic origin, religious beliefs, trade union activity, political affiliations or opinions, criminal record history and financial information.

31.2 Categories of Data Subject – these categories are determined by you but are typically individuals who are: suspected of having committed, or about to commit, an offence; guilty of an offence; suspected of being, victims of an offence; witnesses, or can provide information, about an offence.

31.3 Nature of the processing – the data processing activities are collecting, duplicating, hosting, storing, transmitting analysing, reporting, accessing and deleting Personal Data for the purposes of providing hosted software.

31.4 Purpose/subject matter of the processing – the purposes for processing are providing, maintaining and supporting the hosted Software and Services to enable you to track and manage cases, investigations and intelligence.

31.5 Duration of processing – the duration of processing is for the Term of the Agreement and during any Services provided after termination (including the return and/or migration of data), for the provision of Services.

31.6 Permitted sub-processors – The permitted sub-processors are Microsoft Azure for Hosting Services, together with any other permitted sub-processors agreed by the parties from time to time in writing.

Annex 1 – Change Process

If either party needs to make a change to the Agreement, they shall follow the process set out below:

The party needing or desiring the change shall notify the other party using the form in this Annex 1 (the Change Form).

Upon receipt of a Change Form from the other party, the receiving party shall consider the request in good faith and shall work with the requesting party to complete all parts of the Change Form.

Once the Change Order Form is completed, the parties shall discuss the requested change and the impacts and each shall work in good faith and with all due expediency to reach a mutual decision.  Any amendment to the Change Form required as a result of the discussions shall be made to the Change Form.

Neither party will unreasonably withhold or delay agreement to a requested change.

The change will commence once the Change Form and any corresponding Order has been completed and signed by an authorised representative from each party (in each case, such approval / signatures shall not be unreasonably withheld or delayed).

If the parties agree that the change will not go ahead, the Agreement will continue as if the change had not been requested.

Change Form

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