1.1. This Agreement is made between Wilmington Healthcare Limited a company incorporated in England and Wales with number 02530185 whose registered office is at 5th Floor, 10 Whitechapel High Street, London E1 8QS (“Wilmington Healthcare” or “We”, and “Our” or “Us” shall be construed accordingly) and the party to whom our Order document is addressed or by whom the purchase order accepted by us is issued (“Customer” or “You”, and “Your” shall be construed accordingly).
1.2. This Agreement comprises the Order document prepared and submitted by Us to You (or, if there is no Order document, the purchase order or order submitted by You and accepted by Us in accordance with clause 1.3) (the “Order”) and these Terms & Conditions.
1.3. Where orders are placed online through our website (https://wilmingtonlearninghub.com) (“the Website”) you will be given the opportunity to review your order and amend it. Please ensure you have checked your order carefully before submitting it. Your order to purchase the goods or services constitute a contractual offer that We may, at our sole discretion, accept. Our acceptance is indicated by Us sending You a confirmation by email from Us or the WilStore. Once we have sent you a confirmation email there will be a legally binding contract between Us and You.
1.4. The terms of this Agreement constitute and govern the contractual relationship between You and Us relating to the Services and you accept that these terms apply to the exclusion of any terms and conditions contained in any of Your own documents even if the same purport to provide that Your own or some other terms prevail. Your use of the Services constitutes your acceptance of the terms of this Agreement whether or not you have signed a copy of this Agreement. In the event of any conflict or inconsistency between the terms of the Order and these Terms and Conditions, the terms of the Order shall prevail.
“Client Materials” means any Materials incorporating information or other content provided by the Customer and/or that relate expressly to any Customer brand or products
“CME” means Continuing Medical Education modules
“Commencement Date” means the date when You receive Your email confirmation.
“Completion Date” means the date on which You receive your Product or the expiry of the Licence, where applicable.
“Data” means any information regarding healthcare professionals, which is part of the Supplier’s database, which is the property of the Supplier.
“Data Protection Law” means the Data Protection Act 2018 and all other applicable legislation implementing European Community Directives 95/46, 2002/58 and 2009/136, the General Data Protection Regulation (EU) 2016/679 (the “GDPR”), and any subsequent European Union legislation from time to time in force, in relation to the protection of personal data including any similar or equivalent legislation in any other relevant jurisdiction, and the expressions “process”, “Personal Data”, “Data Processor,” “Data Controller” and “Data Subject” shall bear their respective meanings given in the GDPR.
“Intellectual Property Rights” means all intellectual property rights throughout the world vested or contingent and whether currently in existence or otherwise including (without limitation) copyrights, database rights, design rights, registered designs, patents, trademarks, trade names, signs and other designations, trade secrets and all similar rights whether registered or otherwise and all extensions, revivals, reversions and renewals of any of the above and in relation to registrable rights, any applications made in respect thereof.
“Materials” means any words, literature, copy, pictures, drawings, artwork, story boards, designed, devices, samples, presentations, films, tapes, sound recordings, questionnaires or other materials, and excludes Data belonging to Wilmington Healthcare.
“Payment” means how the “Project Fees” will be invoiced.
“Project Materials” means the Materials provided by the Customer to Wilmington Healthcare in connection with the Services, or jointly developed by Wilmington Healthcare and the Customer, or produced by Wilmington Healthcare or on its behalf at the Customer’s request, and that Wilmington Healthcare makes available from time to time to healthcare professionals via the Website, survey software, electronic devices, emails or otherwise.
“Services” Means the products and/or services to be provided under the terms of this Agreement.
“Supplier Materials” means any Materials belonging to the Supplier
“Third Party Works” means the works and/or Materials, the Intellectual Property Rights in which are owned by a third party (which will be specified in the Order or otherwise agreed between the parties from time to time)
“Website” means the website operated by Wilmington Healthcare from time to time with the URL’s http://www.onmedica.com/ or https://wilmingtonlearninghub.com/ any other website agreed in writing, or any website replacing that site.
3. PROVISION OF SERVICES AND SUPPORT
3.1. In consideration of the payment of the charges, We hereby grant to You a non-exclusive, non-transferable licence to access and use the service(s) (the “Services”) specified in the Agreement, for the duration of this Agreement, subject to and in accordance with its terms.
3.2. You may use the Services for Your normal internal business purposes only.
3.3. You shall co-operate with Us in Our performance of the Services and provide such assistance and information as may be reasonably required by Us in this respect including in relation to the diagnosis of any faults. We will not be responsible for any delay in providing the services that results from you providing incorrect or incomplete information.
3.4. We may, on prior notice to You, make changes to the Services, provided such changes do not have a material adverse effect on the nature or quality of the Services provided to You.
3.5. Where We are providing Mapping Services and one or more Map(s) or Map File(s) are provided under this Agreement then the below will be applicable:
3.5.1. The Customer shall receive a non-exclusive, perpetual, non-transferable, worldwide, revokable licence to use the Map products.
3.5.2. Maps provided under these terms and conditions may not be passed to any other service provider or supplier, and the right to use the Map(s) product may not be transferred to any other individual, organisation or third party at any time, including:
Any electronic map; or
Any map file(s); or
Any bespoke map created
3.5.3. Wilmington Healthcare has taken steps to protect its copyright and intellectual property asset and any unauthorised copying, duplication, sharing, publication or distribution of the products named above supplied under this licence, is strictly prohibited.
3.5.4. During the period of this Agreement, the Map file(s) may be cropped to create an appropriate image to use within presentations, documents and reports designed solely for internal use by the Customer.
3.5.5. Should the Customer require multiple copies of documents and/or reports to be printed for external use (by individuals not employed by the Customer), the Customer must first obtain the written permission of Wilmington Healthcare.
3.5.6. Where permission is granted by Wilmington Healthcare, such permission will be subject to the terms and conditions (including a fee where necessary) of a reproduction of the Product.
3.6. Under this Agreement the Customer is prohibited from using any form of the Product on any website pages. Should the Customer wish to use the Product in an internet-based application, the Customer must first obtain the written permission of Wilmington Healthcare. Permission may be granted and be subject to the terms and conditions (including a fee) of a web publishing licence.
3.7. Alongside any Map image(s) provided under this Agreement, in full or in part, a copyright statement crediting Wilmington Healthcare, and any other third- party contributors should be included as the Map source(s), as detailed in the Order.
4. PLATFORM AND ONLINE COMMUNICATIONS
4.1. You acknowledge that the platform which We make available to You in connection with the provision of the Services is hosted for Us by a third-party service provider. We will use reasonable endeavours to make those Services available in accordance with our published service levels but we cannot guarantee uninterrupted, timely or error free availability including due to unscheduled maintenance or that defects will be corrected within set time periods, and we reserve the right to suspend access to the Website for the purpose of scheduled or emergency maintenance, repairs or upgrades to improve the performance or functionality of the Website.
4.2. We do not accept responsibility for any delay, delivery failure, disruption to the Customer’s access to any Services provided online or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet as a result of, but not limited to, (a) a suspension under clause 4.1, (b) the operation of the internet including any viruses on the internet, (c) any firewall restrictions that have been placed on the Customer’s network or the computer the Customer is using to access the online Services, (d) failures of telecommunications links and equipment, or (e) updated browser issues.
4.3. The Customer is responsible for ensuring that the devices it uses to access any Services are compatible with the minimum specification requirements needed for the delivery of the Services.
4.4. You acknowledge that Your use of the Services may not be without interruption and may not be free of errors, that Services are provided on an ‘as is’ and ‘as available’ basis, and You agree that the existence of any minor errors shall not constitute a breach of this Agreement.
4.5. We do not warrant that the Services are or will be fit for any particular purpose or that it is of satisfactory quality nor as to the accuracy or completeness of any data.
5.1. You shall notify Us of the individual users of the Services, and You will restrict access to and use of the Services to these authorised users only. It is Your responsibility to ensure that all authorised users use only the unique user IDs (unique assigned alphanumeric identifiers) and passwords allocated to them. You shall ensure that no authorised user permits access to the Services, whether by sharing of user ID or password or otherwise, to any person who is not an authorised user.
5.2. You are responsible for the following matters in relation of the security of the Services:
5.2.1. The security of your own computer systems, devices and communications facilities;
5.2.2. The confidentiality of user IDs and passwords for authorised users;
5.2.3. Notifying Us immediately of any actual or suspected information security breaches of which You become aware including any compromised user accounts; and
5.2.4. Periodically reviewing the efficacy and appropriateness of Your security configurations and access rights.
6.1. We will not obtain any title to or ownership rights in any data or content which is proprietary to You and which is provided by You to Us in connection with your use of the Services (“Customer Materials”) which shall remain Your property at all times.
6.2. You shall have sole responsibility for the legality, reliability, integrity, security, accuracy and quality of the Customer Materials.
6.3. We may process and use the Customer Materials for the purposes of providing the Services and for the purposes described in this Agreement.
6.4. If We process any personal data on Your behalf when performing Our obligations under this Agreement, then You shall be the data controller and We shall be a data processor and in any such case You warrant:
6.4.1. that You are legally entitled to and have the appropriate consent or other legal basis, where applicable, transfer the relevant personal data to Us so that We may lawfully use, process and transfer the personal data in accordance with this Agreement on Your behalf; and
6.4.2. that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
6.4.3. Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6.5. You shall ensure that before using the Services each of your users has provided an informed consent to the receipt of emails from Us providing details of products and services similar to the Services accessed by that user in order that users have the opportunity to receive further training, services and information relevant to their perceived requirements and interests, and the use of the Services by each such user constitutes your warranty to Us of the grant of such informed consent by that user.
6.6. We shall or may have possession of or access to Your facilities, apparatus, equipment, drawings, systems, formulae, reports, manuals, invention records, customer lists, computer programmes, or other material embodying trade secrets or confidential technical or business information in the course of providing the Services. We agree not to use any such information or Client Material for our self or others, and not to take any such Client material or reproductions thereof from You at any time during or after the Agreement has terminated, except as required in the Supplier’s duties to the Client or by law.
6.7. For these purposes, You grant Us a non-exclusive, royalty-free licence for the term of this Agreement to use store and maintain the Materials on a server for the purposes of providing the Services under this Agreement.
6.8. You agree that We may make any such copies as may be necessary to perform Our obligations under this Agreement, including backup copies of the Materials.
7.1. In this Agreement “Charges” means all charges, fees, costs, expenses, reimbursements and other payments to be made by You to Us as set out in the Order.
7.2. All Charges are payable by You within 21 days of receipt of our invoice or, in the case of online orders, at the time of placing the order.
7.3. All Charges shall be paid in full without any deduction or withholding other than as required by law and You shall not be entitled to assert any credit, set-off, claim or counterclaim against us in order to justify withholding payment of any such amount in whole or in part.
7.4. All Charges are subject to VAT and/or any other applicable sales tax (if applicable) and, unless otherwise stated, all Charges stated in this Agreement are exclusive of any sales tax or VAT.
7.5. If You fail to pay any amount payable under this Agreement on the due date for payment then We may claim interest on any such sums due to Us (both before and after judgement) at the rate of 3% per annum above the base rate from time to time of Barclays Bank plc or, if lower, at the maximum rate permitted under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.
7.6. We may from time to time change Our prices. Changes in price will not affect any orders that You have already placed but will apply to any subsequent, renewal or new orders.
7.7. Any additional services which fall outside the scope of this Agreement will be subject to additional costs based on Our standard rates.
8. WILMINGTON HEALTHCARE OBLIGATIONS
8.1. We warrant that:
8.1.1. We have all of the rights in relation to the Services that are necessary to grant all of the rights We purport to grant under, and in accordance with, the terms of this Agreement and to fully perform our obligations under this Agreement; and
8.1.2. the Services will be performed with reasonable skill and care and in compliance with all applicable laws.
8.2. The warranties in clause 7.1 shall not apply to the extent of any non-conformance which is caused by Your use of the Services contrary to Our instructions, or any modification or alteration of the Services made by You or by any third party.
8.3. We will use its best endeavours to meet any time deadlines agreed between the parties in respect of the Services but time for performance will not be of the essence of this Agreement unless otherwise agreed in writing.
8.4. The Supplier will comply with all applicable laws and regulations in the provision of the Services.
8.5. The Supplier will, in performance of the Services, comply with all applicable voluntary codes of practice including but not limited to: 3.5.1.the Association of the British Pharmaceutical Industry (APBI);
8.5.1. the proprietary Association of Great British Medicines Advertising Code;
8.5.2. the Blue Guide published by the MHRA; and
8.5.3. the British Healthcare Business Intelligence Association
8.6. The Supplier shall provide adequate staff and resources to ensure that the Services are carried out in accordance with this Agreement.
8.7. Any additional services that fall outside the scope of this Agreement will be subject to additional costs based on the Supplier’s standard rates.
8.8. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.9. We shall ensure that any mailing list or customer database supplied to You by Us shall comply with the requirements of Data Protection Law.
8.10. Wilmington Healthcare warrants that it is registered with the Information Commissioner for the purposes of gathering, processing and trading in personal data for the purposes intended under this Agreement.
8.11. We warrant that all data it supplies to You has been gathered and processed in accordance with the Data Protection Law and that the sale and transfer of such data by the Us to You (or to a Group Company, if applicable) for Your (or the Group Company’s, if applicable) use for marketing, sales and research purposes is in accordance with the Data Protection Law and that Your (and Group Company’s, if applicable) subsequent use of such data (without any modifications thereto) for the purposes as stated above is in accordance with the Data Protection Law.
8.12. We warrant that in collecting personal data and supplying it to You for consideration for inclusion in the Product in the manner envisaged under this Agreement, neither the You nor any relevant Group Company nor any of its or their employees or agents shall be in breach of the Data Protection Law. We shall be liable for and shall indemnify You and any relevant Group company in respect of any and all liabilities, losses, damages, claims or lawsuits (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal or other professional costs and expenses) arising out of or in connection with a breach by the Supplier of the warranties given in this clause and/or the provisions of the Data Protection Law provided that the Client or Group company (if relevant):
8.12.1. Gives Wilmington Healthcare notice of such a claim or lawsuit at the earliest practicable opportunity
8.12.2. Gives Wilmington Healthcare control of the proceedings, provided that Wilmington Healthcare shall keep the Client (or Group Company, if relevant) informed at all times about the progress of such proceedings and shall not admit liability or settle the claim or lawsuit or any part of it without the Client’s or Group Company (if relevant) prior written consent, such consent not the be unreasonably withheld
8.12.3. Gives Wilmington Healthcare all reasonable assistance in defending such claim
8.12.4. Does not use the information provided by Wilmington Healthcare about a data subject to communicate or contact a data subject where that data subject has already notified the Customer that the Customer should not contact the data subject in any way; and
8.12.5. Does not admit liability or settle the claim or lawsuit or any part of it without the Wilmington Healthcare’s written consent, not to be unreasonably withheld or delayed.
8.13. Wilmington Healthcare will endeavour to ensure that the Website, any e-mails, including any attachments, sent or any other materials delivered to healthcare professionals by the Us or on Our behalf will be free of all viruses, worms, trojan horses and other contaminants.
9. YOUR OBLIGATIONS
9.1. You will perform all Customer obligations as set out in this Agreement.
9.2. You will provide Us with all co-operation, information and documentation reasonably required for the provision of the Services.
9.3. You will use reasonable endeavours to ensure Your staff, contractors and other suppliers co- operate fully with Us and do not cause delay.
9.4. You will ensure that any Client Materials comply at all times with all applicable laws including, without limitation:
9.5. Medicines Act 1968;
9.5.1. Medicines (Advertising) Regulations 1994;
9.5.2. Medicines Control Agency guidance notes on advertising and promotion of medicines in the UK;
9.5.3. Advertising standards and codes of practice; and
9.5.4. That all advertising contained is decent, honest and true.
9.6. The Customer warrants that:
9.6.1. It contracts with Wilmington Healthcare as a principal and warrants that it is authorised to instruct Wilmington Healthcare to provide the Services, notwithstanding that You may be acting directly or indirectly for another person as an advertising agent or media Customer or in some other representative capacity.
9.6.2. It will not breach any contract or infringe or violate any copyright, trademark or any other personal or proprietary right of any person or render Wilmington Healthcare liable to any proceedings whatsoever, and agrees to indemnify Wilmington Healthcare and/or its affiliates against all actions, costs, claims and expenses arising from any actual or alleged infringement of those rights.
9.6.3. Any information supplied in connection with the Services is accurate, complete and true and not misleading and all material submitted to Wilmington Healthcare is legal, decent, honest and truthful and is professionally relevant to the intended recipient in their current role within the NHS and that it is not an attempt to engage the recipient in any private capacity for any reason.
9.6.4. The Materials comply with the requirements of all relevant legislation (including subordinate legislation, the rules of statutorily recognised regulatory authorities) for the time being in force or applicable in the United Kingdom and member states of the European Union.
9.7. You shall ensure that any mailing list or customer database supplied to Us shall comply with the requirements of Data Protection Law.
10. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
10.1. In this Agreement “IPR” means any and all intellectual property rights of whatever nature and howsoever arising including patents, trademarks, designs, copyrights and rights in the nature of copyright, moral rights, know-how, all rights in computer software, and database rights. You acknowledge that all IPR in the Services throughout the world belong to Us or Our licensors and that You have no rights in or to the Services other than the right to use them in accordance with the terms of this Agreement.
10.2. Binley’s is a registered trademarks of Wilmington Healthcare Limited.
10.3. We shall at our own expense defend You or, at Our option, settle any claim or action brought against You alleging that Your use of the Services in accordance with the terms of this Agreement infringes the IPR or any other rights of a third party (“Third Party Claim”) and We shall be responsible for any losses, damages, and costs awarded against You and for the reasonable legal costs incurred by You as a result of any such Third Party Claim.
10.4. Clause 9.3 shall not apply where the Claim in question is attributable to any Customer Materials provided by You to Us or Your use of the Services other than in accordance with the terms of this Agreement or otherwise in a manner contrary to the instructions given to You by Us, or to a modification of the Services made by anyone other than Us, or to Your use of the Services after notice of the alleged or actual infringement from Us or any appropriate authority.
10.5. You shall at your own expense defend and indemnify us or, at Your option, settle any claim or action brought against Us alleging that Our use of the Customer Materials in accordance with the terms of this Agreement infringes the IPR or any other rights of a third party (“Customer Materials Claim”) and You shall be responsible for any losses, damages, and costs awarded against Us and for the reasonable legal costs incurred by Us as a result of any such Customer Materials Claim.
10.6. At all times, We and/or our licensors, remain the owner of the IPR in the Website. No Website content, nor any part thereof may be reproduced, stored in a retrieval system or transmitted any form or by any means without our prior written permission.
10.7. The Customer may make Website content available to its authorised users for their personal use for training and educational purposes, subject to which the Customer shall not modify, copy, reproduce, re-publish, sub-license, sell, upload, broadcast, post, transmit, make available, disseminate or distribute in any way any of Website content.
10.8. Use of the Website not expressly permitted in this Agreement is strictly prohibited and will constitute an infringement of our IPR and/or the IPR of our licensors.
10.9. Wilmington Healthcare undertakes to do all such acts or things and execute and/or procure the execution of all such documents as the Customer may request from time to time in order to confirm the Customer’s ownership of these rights.
10.10. Wilmington Healthcare will procure where necessary, that for the Customer’s benefit a licence to use third-party works in the manner contemplated in the Order.
10.11. Both parties agree that during the provision of the Services they may handle intellectual property belonging to the other party or their licensors and both parties agree that they will not use this intellectual property for any other purpose other than for that agreed in this Agreement
10.12. If either party’s’ name is to be quoted in any published or widely circulated document containing any figures, comments, discussion or summary of a report of data provided by Wilmington Healthcare in relation to the Services provided, then the written agreement to the document’s contents must be obtained before it is released to anyone outside of the Customer’s or Wilmington Healthcare’s officers and employees.
10.13. The Customer will not cause or permit anything that may damage or endanger the intellectual property of Wilmington Healthcare or its title to it or assist or allow others to do so. This clause includes but it not limited to meaning that the Customer will not copy or reveal to any third-party any techniques developed by Wilmington Healthcare, or use those techniques other than on projects conducted by Wilmington Healthcare.
11.1. Except as expressly set out in this Agreement or as permitted by any local law which applies to this Agreement and which cannot be excluded, You shall:
11.1.1. not use the Services on behalf of or make them available to any other person;
11.1.2. not make any alterations to, or modifications of, the whole or any part of the Services; and
11.1.3. not access, store, distribute or transmit any material during the course of Your use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or is otherwise illegal, facilitates illegal activity, or causes damage or injury to any person or property.
11.2. The Services are provided for educational purposes only and may not be used or relied upon by the Customer or any of its users to diagnose or treat a healthcare condition or as a substitute for medical attention.
12. TERM AND TERMINATION
12.1. This Agreement shall be deemed to commence from the Commencement Date stated in the Order and/or the date on which we confirmation email, subject to earlier termination as set out in this Agreement, shall continue for the period stated in the Order.
12.2. Either party may terminate this Agreement immediately by written notice to the other as follows:
12.2.1. if the other party commits a material or persistent breach of this Agreement which it fails to remedy (if remediable) within 30 days after the service on it of a written notice requiring it to do so; or
12.2.2. if the other party becomes insolvent on any basis, or suspends or threatens to suspend or ceases to carry on all or a substantial part of its business, or if it takes or gives notice that it intends to take, or it becomes subject to, any steps in any form of insolvency, winding up, administration or receivership process.
12.3. We may terminate this Agreement immediately by written notice to You if You fail to pay any part of the Charges when they fall due and have not paid within a further 14 days of receipt of a notice from Us that the Charges are due; or
12.4. The termination of this Agreement is without prejudice to any rights We may have against You or You may have against Us in respect of any breach of this Agreement by You or by Us respectively.
12.5. Upon termination for any reason:
12.5.1. all rights granted to You under this Agreement shall cease and You must cease all activities authorised by this Agreement;
12.5.2. You shall immediately pay any outstanding unpaid invoices and interest due to Us (and We shall submit invoices for any Services supplied for which no invoice has previously been submitted, and You shall pay these invoices immediately on receipt); and
12.5.3. any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13.1 You may cancel your Order at any time however we cannot offer any refunds and you will continue to have access to the Services for the duration of your licence.
13.2 If you wish to exercise your right to cancel under this Clause 13, you may inform Us of your cancellation using the following details:
22.214.171.124 Telephone: 01268 495600;
126.96.36.199 Email: email@example.com;
188.8.131.52 Post: 5th Floor, 10 Whitechapel High Street, London E1 8QS;
In each case, providing Us with your name, address, email address, telephone number, and Order Number.
13.3 This Agreement can be terminated forthwith by given written notice to the other if:
13.3.1 The other party should commit a material breach of this Agreement and (in the event of a breach capable of remedy) shall not remedy the same within 30 (thirty) days of written notice given by the other Party specifying the breach and require its remedy; or
13.3.2 The other party should fail to pay in full any sums payable to the Supplier by the Client under this Agreement within 20 (twenty) business days after the due date for its payment
13.3.3 An encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party or that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or that other party goes in to liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement) or anything analogous to any of the foregoing under the laws of any jurisdiction occurs in relation to that other party or that party ceases, or threatens to cease, to carry on business)
13.4 If the Customer terminates this Agreement or if this Agreement is terminated due to the Customer’s non- compliance with these terms and conditions, the Customer will immediately cease to use the Project Materials and delete and destroy all copies of the Project materials in the Customer’s possession. Where We are providing You with an e-communication service We may at Our sole discretion dispose of the URL address and any other records relating to this Agreement as it sees fit at the end of the six-month period without any further recourse to You. Should You wish to continue to use the domain name or buy the domain name from the Us, You may do so at a cost to be agreed between the parties.
14. LIMITATION OF LIABILITY
14.1. The following provisions set out Our entire liability (including any liability for the acts and omissions of Our employee’s agents and sub-contractors) to You arising out of or in connection with this Agreement including in respect of any breach of Our contractual obligations arising under this Agreement and any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.
14.2. Nothing in this Agreement shall limit or exclude our liability for death or personal injury resulting from our negligence; fraud or fraudulent misrepresentation; breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of the Goods and Services Act 1982; or any other liability that cannot be excluded or limited by English law.
14.3. We shall not under any circumstances whatsoever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: loss of profits, sales, business, or revenue; business interruption; loss of anticipated savings; loss or corruption of data or information; loss of business opportunity, goodwill or reputation; or for any indirect, consequential or special loss or damage or whatsoever nature and howsoever arising even if such loss was reasonably foreseeable or We were advised of the possibility of You incurring the same.
14.4. Other than the losses set out in clause 14.3 (for which We are not liable), our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the amount of the Charges paid by You in the 12-month period prior to the occurrence of the event in respect of which the relevant loss arose. This limitation on Our aggregate liability does not apply to clause 14.2.
14.5. If a number of breaches of this Agreement give rise to substantially the same loss, then they shall be regarded as giving rise to only one claim under this Agreement.
14.6. You agree to afford Us not less than 30 days (following notification thereof by You) in which to remedy any breach of this Agreement.
14.7. Except in the case of a claim arising under clause 14.2 above We shall have no liability to You in respect of any breach of this Agreement unless You shall have served notice of the same upon Us within 2 years of the date You became aware of the circumstances giving rise to the breach or the date when You ought reasonably to have become so aware.
14.8. Nothing in this clause 14 shall confer any right or remedy upon You to which You would not otherwise be legally entitled. This Agreement sets out the full extent of our obligations and liabilities in respect of the provision of the Services. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
15.1. Each party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for any purpose other than the proper exercise of its rights under this Agreement nor disclose to any third party (except as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets, technical information, know-how, and information of commercial value) which may become known to it and which relates to the other party or to the other party’s business unless (i) that information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge in each case other than by a breach of this Agreement, or (ii) subsequently comes lawfully into its possession from a third party. For the avoidance of doubt, any database or similar compilation which is compiled from publicly available data shall constitute information of a confidential nature notwithstanding that any or all of the data within that database is public knowledge.
15.2. Each party shall use all reasonable endeavours to prevent the unauthorised disclosure of the other party’s confidential information and You shall restrict disclosure of Our confidential information to such of your employees as need to know the same for the purpose of using the Services and You shall be responsible for ensuring that any such persons accept and adhere to equivalent obligations of confidentiality to those contained in this clause 16.
15.3. Nothing in this clause 16 shall prevent either party from disclosing any information which it is compelled by law to disclose to a court of competent jurisdiction or other body having similar authority or pursuant to any government, stock exchange or other regulations including the Freedom of Information Act 2000.
16. FORCE MAJEURE
We shall not in any circumstances be in breach of this Agreement nor liable for any delay in performing, or any failure to perform, any of Our obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond our reasonable control. The Party whose obligations cannot be performed on time or at all as a direct result of force majeure shall use all reasonable endeavours to minimise the effect of the force majeure on the fulfilment of this Agreement. If the force majeure or the non-performance or late performance resulting from force majeure continues for a period exceeding 30 (thirty) days, the innocent Party may terminate this Agreement on giving not less than 7 (seven) days’ written notice to the other Party.
17.1. If either party gives notice in writing under this Agreement, it will do so by email or by a recorded delivery postal service to the address of the other party set out in the Agreement.
17.2. Any notice given by You to us, or by us to You, will be deemed received and properly served immediately 24 hours after an e-mail is sent, or upon signed receipt in the case of recorded delivery service. In proving the service of any notice sent by email, it will be sufficient to prove that such email was sent to the specified email address of the addressee and a delivery receipt was obtained.
17.3. The provisions of this clause 16 shall not apply to the service of any proceedings or other documents in any legal action.
18. ASSIGNMENT AND THIRD PARTIES
18.1. We may assign, transfer, novate, charge, subcontract or deal in any other manner with our rights and obligations under this Agreement to another person, but this will not affect Your rights or our obligations under this Agreement.
18.2. You may not assign, transfer, sub-license or otherwise dispose of or deal with Your rights or obligations under this Agreement to any other person unless We expressly agree in writing.
18.3. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
19.1. This is a non-exclusive Agreement and unless otherwise specified restricted by this Agreement, both parties are free to contract with other parties for similar services. The Supplier will provide the Data and Services requested by the Client that are specified in this Agreement subject to the Client agreeing to the terms of this Agreement in full.
19.2. This Agreement constitutes the entire agreement and understanding between the parties (including the performances to be rendered) with respect to the subject matter hereof and supersedes any previous agreements, representations or understandings. Each party acknowledges that in entering into this Agreement it does not do so on the basis of or in reliance upon any representations, promises, undertakings, warranties or other statements (whether written or oral) of any nature whatsoever except as may be expressly provided in this Agreement (and accordingly any conditions, warranties or other terms implied by statute or common law are (save as to fraud) hereby excluded to the fullest extent permitted by law).
19.3. Failure by either party to enforce any of the provisions of the agreement shall not represent a waiver of such rights and shall not affect the validity of this Agreement nor affect the party’s rights to take subsequent action.
19.4. Each of the terms of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining terms will remain in full force and effect.
19.5. This agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
19.6. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original part, but all the counterparts shall together constitute the same agreement.
19.7. All references to Clauses are, unless otherwise expressly stated, references to Clauses of this Agreement.
19.8. Headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement.
19.9. A reference to one gender shall denote all genders and a reference to the singular shall include the plural and vice versa. References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time.
19.10. References to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established; references to a “person” shall be construed so as to include any individual, firm, company, government, state or agency of the state or any joint venture, association or partnership (whether or not being separate legal personality).
19.11. Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words “without limitation” following them. Where the context permits, “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them.