(A) Axiom TDM Limited (“Axiom“) has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis.
(B) The Customer (as set out in the Order Form) wishes to use Axiom’s service in its business operations.
(C) Axiom has agreed to provide and the Customer has agreed to take and pay for Axiom’s service on the terms of the Order Form and these conditions (together the “Agreement”).
In these conditions the following expressions shall have the following meanings unless inconsistent with the context:
“Account Activation Date” means the Account Activation Date set out in the Order Form.
“Additional Services” those additional services provided by Axiom from time to time in accordance with an Order Form.
“Authorised Users” means the number of Fee Earners Subscribers and the Administrator Subscribers set out in the Order Form.
“Authorised Users’ Representative” the representative nominated by the Customer and notified to Axiom from time to time.
“Commencement Date” the date of signature of the Order Form.
“Commercially Sensitive Data” the Documentation, Axiom Product Source Configuration, Search Indexes, Search Logs and Audit Logs provided or generated by Axiom or other any metadata generated by or on behalf of Customer under, or any other commercial data whatsoever or howsoever generated by Axiom in providing the Services or otherwise in connection with the Agreement, including Axiom’s pricing information, pricing structure and working practices and information pertaining thereto.
“Confidential Information” all information in respect of the business of Axiom and Customer including, without prejudice to the generality of the foregoing, any ideas, business methods, finance, prices, business, financial, marketing, development or manpower plans, customer lists or details, the Commercially Sensitive Data or any other Intellectual Property Rights owned by Axiom, computer systems and software including without limit the Software, the Documentation, products or services, including but not limited to know-how or other matters connected with the products or services marketed, provided or obtained by Axiom, and information concerning Axiom’s relationships with actual or potential Customers, customers or suppliers and any other information which, if disclosed, shall be liable to cause harm to the party whose confidential information would be disclosed.
“Customer Data” the data inputted into the Software by the Customer or the Authorised Users, or by Axiom on the Customer’s behalf.
“Customer Operating Environment” the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Services and which is a system which is an Interoperable Legal System.
“Data Protection Legislation” all laws, regulations, legislative and regulatory requirements, and codes of practice applicable to the processing of personal data, including without limitation all the provisions of the UK Data Protection Act 1998 and any regulations or instruments thereunder, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
“Documentation” documentation provided by Axiom to the Customer or the Authorised Users from time to time.
“Fair Usage” the fair usage policy as detailed in the Order Form.
“Fees” fees for the Services (and/or Additional Services as set out on the Order Form) and other fees agreed between the parties from time to time.
“Force Majeure Event” any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of the party so prevented including, without limitation, strikes, lockouts or other industrial disputes (in each case whether involving the workforce of the party so prevented or any other party), protests, act of God, war or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery or telecommunications, fire, explosion, flood, storm, epidemic or default or delays of suppliers or sub-contractors.
“Initial Term” the initial term for the provision of the Services as set out in the Order Form.
“Intellectual Property Rights” all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights, domain names and any other rights in any invention, discovery or process, in each case in the United Kingdom and together with all renewals and extensions
“Interoperable Legal System(s)” a system which is interoperable with the Software and is defined as including 3rd party connectivity to HyperLaw.
“Normal Business Hours” 9.00 am to 5.00 pm local UK time, each Business Day.
“Order Form” the order form detailing the Services which is signed by both parties.
“party(ies)” the Customer and Axiom.
“Product Description” the description of the Software.
“Renewal Term” as described in Clause 2.2.
“Services” any services provided by Axiom under the Agreement including without limit the subscription services provided by Axiom to the Customer, the Support Services and any Additional Services.
“Software” the software tool which provides search and content results from Customer Data including without limit all releases and versions of those programs issued by Axiom to the Customer.
“Support Services” support and Support Services in relation to the Software and the Services to be provided to the Customer as detailed in clause 9 as amended from time to time.
“Term” shall mean the Initial Term and any Renewal Term.
“User Subscriptions” the user subscriptions purchased by the Customer pursuant to the Order Form which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Agreement.
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices
In the event of a conflict between these terms and conditions or the Order Form, the Order Form shall take precedence over these terms and conditions.
2. COMMENCEMENT AND DURATION
2.1 The Agreement will operate as a framework agreement which defines the contractual terms and conditions under which Axiom will supply the Services to the Customer.
2.2 The Agreement shall commence on the Commencement Date and shall continue throughout the Initial Term, as renewed by agreement in writing between the Customer or Axiom.
2.3 Subject to the payment of the appropriate Fees, Axiom shall provide any Additional Services (as agreed between the parties from time to time in a separate Order Form) and under the terms of the Agreement.
3. USER SUBSCRIPTIONS
3.1 Subject to the Customer purchasing the User Subscriptions in accordance with the Order From and the restrictions set out in these conditions, Axiom hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer’s internal business operations within the United Kingdom.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
3.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
3.2.3 it shall not allow Administrator Subscribers to perform fee earning tasks using the Services;
3.2.4 each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential;
3.2.5 it shall maintain a written, up to date list of current Authorised Users and provide such list to Axiom within 5 Business Days of Axiom’s written request at any time or times;
3.2.6 it shall permit Axiom to audit the Services (either remotely or on-site at the Customer’s premises), including, but not limited to, in order to establish the name, password or status of each Authorised User and to establish whether Administrator Subscribers are using the Services for fee earning purposes;
3.2.7 if any of the audits referred to in clause 3.2.6 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Axiom’s other rights, the Customer shall promptly disable such passwords and Axiom shall not issue any new passwords to any such individual; and
3.2.8 if any of the audits referred to in clause 3.2.6 reveal that the Customer has underpaid Subscription Fees to Axiom, then without prejudice to Axiom’s other rights, the Customer shall pay to Axiom an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within 10 Business Days of the date of the relevant audit.
3.3 The Customer shall not, and shall procure that the Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Axiom reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.4 The Customer shall not, and shall procure that the Authorised Users shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
3.4.1. copy or attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any mean and shall notify Axiom immediately on becoming aware of any unauthorised use of the Software or Services or Documentation by any person; or
220.127.116.11attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3.4.3 use the Services and/or Documentation to provide services to third parties; or
3.4.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
3.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Axiom.
3.6 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1 Axiom shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
4.2 Axiom shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance works, which shall be carried out wherever possible outside of Normal Business Hours.
4.3 Whilst Axiom will use all reasonable endeavours to meet any delivery dates, any dates quoted for delivery of Services are approximate only and time is not of the essence in relation to Axiom’s performance of its obligations under the Agreement.
4.4 Axiom will, as part of the Services and at no additional cost to the Customer, provide the Customer with its standard customer support services during Normal Business Hours in accordance with clause 9 (which Axiom may amend in its sole and absolute discretion from time to time). The Customer may purchase enhanced support services separately at Axiom’s then current rates.
5. RESTRICTIONS ON USE
5.1 The Customer shall, and ensure that the Authorised Users shall:
5.1.1 effect and maintain adequate security measures to safeguard the Software or Services against access to or use by unauthorised persons and ensure that the Software or Services and the Documentation and all copies are kept under its control. To the extent permissible by law Axiom shall not be liable for any loss or damage that may occur or the Customer or any Authorised User may incur as a result of any misuse of the Software or Services;
5.1.2 only use the Services in respect of the agreed Fair Usage Policy (as set out in the Order Form). Any additional usage shall be charged at the Excess Usage Fees set out in the Order Form; and
5.1.3 indemnify Axiom from and against all claims, liabilities, proceedings, costs, damages, losses, or expenses incurred by Axiom caused by, or in any way connected with, Customer’s and Authorised User’s use of the Services, or the unauthorised use of the Services by any third party, whether through breach of the Agreement or any other negligent or wrongful act of Customer, Authorised User or third party (as appropriate).
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
6.1.1 provide all such assistance and access to its sites and the Customer Operating Environment as is reasonably necessary to allow Axiom to perform its obligations under the Agreement;
6.1.2 ensure that Axiom is able to liaise directly with the Authorised Users, as is reasonably necessary, in order to perform its obligations under the Agreement;
6.1.3 make available a nominated member of staff to attend training sessions in relation to the Services and feed the output of such training sessions through to the Authorised Users or otherwise arrange for the Authorised Users to attend such training sessions;
6.1.4 provide Axiom with a list of Customer sites where the Services will be used and facilitate access to those sites.
6.1.5 obtain and maintain all necessary license, consents and permissions necessary for Axiom, its contractors and agents to perform their obligations under the Agreement;
6.1.6 ensure that its network and systems comply with the relevant specifications provided by Axiom from time to time including but not limited to any hardware specification provided by Axiom from time to time;
6.1.7 be solely responsible for procuring and maintaining its network connections and the Customer Operating Environment and telecommunications links from its systems to the Axiom systems, Software or Services and all problems conditions, delays, delivery failures and all other loss or damage resulting from or relating to the Customer’s (or any Authorised User’s) network connections or telecommunication links or caused by the internet.
6.2 At Axiom’s written request, which shall not be more frequently than bi-annually, the Customer shall furnish or procure that the Authorised Users furnish Axiom with a signed statement verifying that the Services and the Documentation are being used in accordance with the provisions of the Agreement and providing the relevant details to Axiom relevant to the Software and Services being provided to allow it to do so. The Customer agrees to grant Axiom access, upon reasonable prior notice and during Normal Business Hours, to its premises in order to audit the use of the Services and Documentation.
7.1 The Customer shall pay the Fees as detailed in the Order Form in accordance with this clause, subject to any other payment terms detailed in the Order Form.
7.2 The Customer shall pay supplementary charges:
7.2.1 when Axiom responds to a fault report or request for assistance and no problem is found to exist (after proper investigation) or the problem reported is one not covered by the Support Services; or
7.2.2 when performance of Axiom’s obligations is made significantly more difficult or made more costly by failure of Customer or any Authorised User to comply with its obligations.
7.3 Fees in respect of any Additional Services or other works performed by Axiom (which are not performed under an agreed fee in the Order Form) shall be agreed in advance and chargeable by Axiom at its time (on a pro-rata basis for each part day) and material rates in force from time to time.
7.4 All sums due under the Agreement shall be paid in pounds sterling, and are exclusive of any VAT which shall be paid at the rate for the time being prescribed by law.
7.5 All amounts due under the Agreement from Axiom to Customer shall be due and payable as set out in the Order Form, or if not specified, within 30 days of the date of the relevant invoice.
7.6 If Axiom has not received payment of sums due to it by the Customer within 5 Business Days of the due date, and without prejudice to any other rights and remedies Axiom may have, and without liability to the Customer, at its sole option, terminate the Agreement with immediate effect or disable the Customer’s access to all or part of the Services. Axiom shall be under no obligation to provide any or all of the Services while such payment, interest, and any administrative and/or legal costs of collecting the payment, remain unpaid.
7.7 If the Customer Operating Environment are compromised, Axiom may suspend the Customer’s access to the Services. The Customer must address the vulnerability and demonstrate to Axiom’s satisfaction that such vulnerability has appropriately addressed and/or fixed prior to Axiom resuming the Customer’s access to the Services. A reconnection fee may be payable at Axiom’s sole discretion.
7.8 If any sum payable under the Agreement is not paid when due then, without prejudice to Axiom’s other rights under the Agreement, that sum shall bear interest from the due date until payment is made in full both before and after any judgment, at 5 per cent per annum over Barclay’s Bank plc base rate from time to time. Nothing in the Agreement shall prevent Axiom from claiming interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
8. CUSTOMER’S ACKNOWLEDGEMENTS
8.1 The Customer acknowledges that:
8.1.1 the Software has not been written to satisfy the Customer’s individual requirements. It is Customer’s responsibility to ensure that the Services and Documentation meet its requirements. Axiom does not warrant that it shall be suitable for such requirements;
8.1.2 software in general is not error free and that the existence of minor errors shall not by themselves constitute a breach of the Agreement and that Axiom shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
8.1.3 they shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and the search criteria used by the Authorised Users in their use of the Services;
8.1.4 Axiom shall not be responsible for outputs or the quality of data provided from 3rd party systems that present within the solution’s search results and for conclusions drawn, and actions taken, from such use by the Customer; and
8.1.5 Axiom may provide fixes for Software from time to time via new versions of a Software release.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Axiom shall use reasonable efforts to ensure the accurate migration of any Customer Data, but gives no warranties as to the completeness or accuracy of the same. The Customer shall be responsible for checking the accuracy and completeness of any Customer Data or other migrated data, and shall promptly give details to Axiom of any inaccuracies or omissions;
8.3 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Axiom to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Axiom in accordance with its archiving procedures. Axiom shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Axiom to perform services related to Customer Data maintenance and back-up).
8.4 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. The Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9. SUPPORT SERVICES
9.1 Axiom shall provide the Support Services in accordance with this clause and/or as further detailed in any Order Form.
9.2 Axiom shall use its reasonable endeavours to:
9.2.1 provide provide first-line support personnel to take calls during the service hours who shall verify the initial priority set at the support desk via discussion between service delivery personnel and the Customer, allocate calls with an initial priority via discussion between the support desk and the Customer and offer an initial assessment of the time it shall take to resolve;
9.2.2 provide an answer-phone service to record calls outside Normal Business Hours, which shall be actioned during Normal Business Hours;
9.2.3 ensure that a call remains open until a satisfactory resolution has been reached in agreement with the Customer. In the event that the Customer is unavailable and two attempts have been made to contact the caller, service delivery staff shall close the call. If this is the case a message shall be left with someone at the Customer’s office and an e-mail sent. Should the resolution prove unsatisfactory the original call can be re-opened without the need to raise a new call with the support desk;
9.2.4 notify all Customers of any problem or issue that may significantly impact their business and, where applicable, update the Software as soon as practicable;
9.2.5 provide follow-up communication providing detail of resolution to the problem/issue identified above; and
9.2.6 provide second-line staff for the resolution and fixing of software problems.
9.3 The Customer acknowledges that:
9.3.1 it shall be responsible for any loss or corruption of data or malfunction of the live system, caused by any of Customer’s own staff or other contract third parties. The rectification of such loss or corruption falls outside all normal support agreements with Axiom;
9.3.2 it shall ensure that new members of staff receive appropriate and relevant Software, application or systems administration training prior to using the Software and are made aware of any available electronic and hard copy documentation and help files;
9.3.3 fees for Support Services are for a reasonable level of support assistance. If Axiom believes, in its sole opinion, that Support Services are being used excessively, for example as a replacement for training, Axiom reserves the right to charge for such Support Services on an hourly basis at its then current rates in force.
9.4 The following are excluded from the scope of the Support Services:
9.4.1 meetings requested by Customers relating to projects work may be chargeable in addition to Support Services (e.g. where general technical advice or consultancy is required but it is unrelated to core Software functionality or any links with it);
9.4.2 out of hours and weekend working;
9.4.3 where a problem or fault is caused directly or indirectly by a fault or malfunction (in the reasonable opinion of Axiom) in the Customer Operating Environment; and
9.4.4 support which is required where the Customer or the Authorised User has not implemented Axiom’s recommendations in respect of solutions to faults previously notified to Customer.
10.1 Axiom warrants that the Services (including without limit the Support Services) shall be provided with reasonable skill and care.
10.2 Axiom does not warrant that the Software shall be free from all known viruses but shall use commercially reasonable efforts to check for the most commonly known viruses prior to delivery.
11. INTELLECTUAL PROPERTY
11.1 All patents in (whether actual or pending and whether in the United Kingdom or anywhere in the world) and all other Intellectual Property Rights in the Software, Services, Commercially Sensitive Data, Axiom’s Confidential Information and the Documentation are and shall remain the property of Axiom (or its licensors).
11.2 Axiom shall defend or, at its option, settle any claim or proceeding brought against a Customer, that the normal use of the Services by Customer in accordance with the Agreement infringes any Intellectual Property Rights of any third party, and shall pay any damages finally awarded against the Customer in respect of such claim together with any reasonable costs and expenses incurred by Customer provided that Axiom is given immediate and complete control of such claim and all information and assistance, at Axiom’s cost, as Axiom reasonably requires, and that Customer does not do, or omit to do anything which may prejudice the defence of such claim.
11.3 In the event that a claim as contemplated by Clause 11.2 is made or in Axiom’s opinion is likely to be made, Axiom may at its option:
11.3.1 procure the right for Customer to continue to use the Services affected without materially affecting the functionality;
11.3.2 change or replace all or any part of the Services without materially affecting the functionality; or
11.3.3 if the options under Clause 11.3.1 or 11.3.2 are not reasonably commercially available to Axiom, terminate the Agreement immediately upon written notice to the Customer, in which case Axiom shall refund the Fees in respect of the affected Services less a reasonable charge for their use prior to such termination.
11.4 The indemnity set out above shall not apply to any claim arising directly or, to the extent applicable, indirectly out of any of the following:
11.4.1 Axiom’s compliance with Customer’s design or design instructions or requirements;
11.4.2 any use of the Services in a manner, or for a purpose, which was not foreseeable by Axiom;
11.4.3 the infringement results from the assembly, function or use of the Services in combination with any products or software or services not supplied by Axiom;
11.4.4 the infringement results from the acts or omissions of Customer or the Authorised Users; or
11.4.5 the modification of the Services by Customer or the Authorised Users or by any third party.
11.5 Clauses 11.2 and 11.3 state the entire liability of Axiom to the Customer in respect of any claim contemplated by Clause 11.2.
11.6 The Customer grants to Axiom an irrevocable, perpetual, royalty-free licence in any and all Intellectual Property Rights in data outcomes and reporting arising from the Customer’s use of the Services, including, but not limited to, enriched data reporting and history at the date of their creation, and shall do all acts and execute all such deeds and documents as may be necessary to give effect to such licence.
12.1 Axiom may have access to Confidential Information of the Customer under the Agreement and vice versa. A party’s Confidential Information shall not include information that:
12.1.1 is or becomes publicly known through no act or omission of the receiving party; or
12.1.2 was in the other party’s lawful possession prior to the disclosure; or
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4 is independently developed by the receiving party, which development can be shown by written evidence; or
12.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2 The Customer acknowledges that all or part of the Commercially Sensitive Information shall constitute Confidential Information and that the disclosure of the same without the permission of Axiom would or is likely to prejudice Axiom’s commercial interests. The Customer shall, and shall procure that the Authorised Users shall, use the same standard of care to protect the Commercially Sensitive Information as it uses to protect its own similar sensitive and confidential information, but in no event shall it use less than reasonable and prudent care.
12.3 The Customer agrees with Axiom to keep confidential and in strict confidence the terms of the Agreement.
12.4 The Customer and Axiom agree to keep confidential and in strict confidence any and all Confidential Information that it may acquire in relation to the other party, not to use such Confidential Information (save in the provision of the Services or to comply with its obligations under the Agreement and not to disclose the same to a third party (other than it’s professional advisers or sub-contractors who are under a similar duty to protect Confidential Information) unless required by law.
12.5 The Customer and Axiom shall ensure that its officers and employees comply with the provisions of this Clause 13, and shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this clause 12. In particular, the Customer shall ensure that the Authorised Users are aware of and comply with the confidentiality obligations set out in this clause 12 as if they were a party to the Agreement.
12.6 Axiom may disclose the Customer’s Confidential Information to those of its representatives or sub-contractors who need to know this Confidential Information in order that Axiom may provide the Services under the Agreement, provided that:
12.6.1 it informs its representatives or sub-contractors of the confidential nature of the Confidential Information before disclosure; and
12.6.2 it procures that its representatives or sub-contractors shall, in relation to any Confidential Information disclosed to them, comply with the Agreement and, in particular this Clause 13, as if they were named herein.
12.7 The provisions of this Clause 12 shall survive any termination of the Agreement for a period of 5 years from termination.
13. TERMINATION AND CONSEQUENCES OF TERMINATION
13.1 Without affecting any other rights that it may be entitled to, either Axiom or the Customer may, by written notice served on the other, terminate the Agreement immediately if the other:
13.1.1 is in material breach of any of the terms of the Agreement and, where the breach is capable of remedy, and the other party fails to remedy such breach within 30 days after service of the notice (which notice shall specify the breach and require it to be remedied), provided that any such notice is served within three months of the breach occurring or becoming known to the party serving the notice; or
13.1.2 summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertakings or income, has passed a resolution for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any Court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person or is the subject of a notice to strike off the register at Companies House.
13.2 Upon termination of the Agreement howsoever arising:
13.2.1 all sums payable to Axiom by Customer shall become immediately due and payable;
13.2.2 the right to use the Services shall terminate (and Customer shall immediately inform the Authorised Users of such termination); and
13.2.3 the Customer shall promptly return to Axiom or destroy (at Axiom’s option) all copies of the Documentation in its possession or control and shall procure that the Authorised Users do the same and shall confirm the same in writing to te Customer within 7 days of termination.
13.3 The termination of the Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
13.4 The clauses in the Agreement which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
13.5 If the Agreement is terminated prior to the end of the Term, other than by reason of a material breach by Axiom under Clause 13.1.1, all Fees payable up to the end of the Term shall be immediately due and payable by the Customer.
13.6 Notwithstanding the foregoing, Axiom may suspend the Services without liability if:
13.6.1 Axiom reasonably believe that the Services are being used in breach of the Agreement and the Customer does not remedy the failure within fourteen (14) days of Axiom’s written notice to the Customer describing the breach;
13.6.2 the Customer does not co-operate with Axiom’s reasonable investigation of any suspected violation of the Agreement;
13.6.3 there is an attack on the Services or the Services are accessed by or manipulated by a third party without Axiom’s consent;
13.6.4 Axiom is required by law to suspend the Services or the Customer’s access to the Services; or
13.6.5 there is another event for which Axiom reasonably believes that a suspension of the Services is necessary to protect its network, system, the Services or its other Customers.
13.7 Axiom will use reasonable endeavours to give the Customer advance notice of a suspension under Clauses 13.6.3 to 13.6.5 (inclusive), unless Axiom determines in its reasonable commercial judgement that an immediate suspension is necessary to protect Axiom or its Customers from an imminent and significant operational or security risk.
14. LIMITATION AND EXCLUSION OF LIABILITY
14.1 Axiom does not exclude its liability (if any) to Customer:
14.1.1 for personal injury or death resulting from Axiom’s negligence;
14.1.2 for any matter to the extent for which it would be illegal for Axiom to exclude or to attempt to exclude its liability; or
14.1.3 for fraud or fraudulent misrepresentation.
14.2 Except as set out in Clause 10, Axiom makes no express warranties with respect to the Software, Services and Documentation and Axiom hereby excludes to the fullest extent permissible in law, all conditions, warranties (including without limitation any warranty that the Software or Services shall meet Customer’s requirements or that its operation shall be uninterrupted or error free) and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of Customer.
14.3 Axiom shall have no liability for any damage caused by errors or omissions in any information, Customer Data, instructions or materials provided to Axiom by the Customer or used in relation to the Services, or from any conclusions drawn by the Customer as a result of its use of the Services, or for any action taken by Axiom at the Customer’s direction.
14.4 Axiom accepts no liability in respect to the functionality or interoperability of any third party software or interoperable systems with the Software.
14.5 Subject to Clause 14.1, Axiom’s entire liability under or in connection with the Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors) whether in contract, tort (including without limit negligence), breach of statutory duty, restitution or otherwise in any event, in respect of all losses in any contractual year, shall be limited to 100% of the Fees paid or payable under the Agreement in the preceding 12 moth period.
14.6 Except as provided in Clause 14.1, Axiom shall be under no liability to Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of data, loss of savings, depletion of goodwill and like loss) howsoever caused.
14.7 Axiom shall not be in breach of the Agreement to the extent its failure to perform an obligation under the Agreement is as a result of Customer’s failure, or any failure of the Authorised Users, to perform their obligations under or in connection with the Agreement.
15. FREEDOM OF INFORMATION
15.1 Subject always to Clause 12, should the Customer receive a request to disclose the Commercially Sensitive Information (or part thereof) or details pertaining thereto from another party or person (whether under an application under the Freedom of Information Act 2000 or otherwise), or should the Information Commissioner serve a notice on the Customer requiring the disclosure of the Commercially Sensitive Information, then the Customer shall:
15.1.1 promptly notify and consult with Axiom when considering a request for access to such Commercially Sensitive Information (including without limit advising Axiom if the Customer is considering disclosing such Commercially Sensitive Information) and if required by Axiom appeal against the notice to the Information Tribunal and/or apply redactions to such Commercially Sensitive Information;
15.1.2 use all its reasonable endeavours to withhold Commercially Sensitive Information (or details pertaining thereto), under an absolute or qualified exemption of the Freedom of Information Act, or otherwise where such disclosure would be disproportionate, unnecessary or unwarranted.
15.1.3 immediately provide Axiom with written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order.
16. FORCE MAJEURE
Neither the Customer nor Axiom shall be liable to the other for any failure or delay or for the consequences of any failure or delay in performance of the Agreement if it is due to a Force Majeure Event, and the party so delayed shall be entitled to a reasonable extension of time for performing such obligations.
17. DATA PROTECTION
17.1 Axiom and the Customer shall comply with their respective obligations under the Data Protection Act 1998 and any other applicable data protection legislation (the “Act”) and the Customer shall ensure it has all relevant consents required for Axiom to process Personal Data and Sensitive Personal Data in order for Axiom to comply with its obligations under the Agreement. For the avoidance of doubt, Axiom shall not be liable for any breach of the Act by the Customer or as a result of any disclosure of data to a third party by the Customer.
17.2 Where Axiom or any of its sub-contractors, as part of the fulfilment of their obligations under the Agreement, processes personal data on the Customer’s behalf, the parties record their intention that the Customer shall be the data controller and Axiom shall be a data processor and in any such case:
17.2.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Axiom’s other obligations under this Agreement;
17.2.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Axiom so that Axiom may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
17.2.3 the Customer shall ensure 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
17.2.4 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.
18.1 The Customer shall not during the Term, nor for a period of twelve months after termination of the Term (howsoever caused), solicit or employ Axiom’s employees or contractors who have been employed or engaged in the performance of the Services.
18.2 For the purposes of this Clause 18, ‘solicit’ means the soliciting of any person with a view to engaging such person as an employee, director, sub-contractor or independent contractor. In the event that Customer is in breach of Clause 18.1 above, the Customer shall pay to Axiom by way of liquidated damages an amount equal to 100 (one hundred) per cent of the gross annual salary (as at the time of the breach) of the person so employed or engaged.
19.1 All notices made or that are required under the Agreement shall be in writing and shall be sent to the addresses set out on the Order Form (or such other address as may be notified in writing from time to time) by first class pre-paid letter or fax transmission, or delivered by hand.
19.2 All notices shall be deemed to have been received:
19.2.1 by first class post, 48 hours after the date of mailing;
19.2.2 by hand, immediately upon delivery; or
19.2.3 by fax, immediately upon transmission.
20. DISPUTE RESOLUTION
20.1 If any dispute arises out of the Agreement (“a Dispute”) the parties shall attempt to resolve it by negotiating in good faith. Subject to Clause 20.2, the procedures set out in the rest of this Clause 20 shall be followed prior to the issue of any proceedings or in relation to any Dispute concerning matters of procedure and management.
20.2 Any Dispute which the parties fail to resolve within 2 Business Days of its first notification by one party to the other shall be referred to Axiom’s Account Manager (or delegated representative) for Axiom and Customer’s representative for resolution (unless the parties agree otherwise in writing).
20.3 If the relevant Dispute remains unresolved within 2 Business Days of its referral to the parties’ respective individuals as set out in Clause 20.2, then the Dispute shall be referred to Axiom’s CEO (or delegated representative) and the Customer’s CEO (unless the parties agree otherwise in writing).
20.4 If the relevant Dispute remains unresolved following its referral to the parties’ respective individuals as set out in Clause 20.3, then the parties shall be at liberty to commence proceedings. However, they shall consider on an ongoing basis whether or not it would be suitable to enter into mediation.
20.5 This Clause 20 shall not prevent either party from:
20.5.1 seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of Intellectual Property Rights; or
20.5.2 commencing any proceedings where reasonably necessary to avoid any inability to claim due to the rules on limitation of actions; or
20.5.3 commencing proceedings in the case of non-payment of an invoice.
21.1 This Agreement and other documents referred to in it (each of which are incorporated into and form part of the Agreement), constitute the entire agreement between the Customer and Axiom, and supersedes any previous agreements, between the parties relating to the subject matter of the Agreement. The parties acknowledge that the Agreement has not been entered into wholly or partly in reliance on, nor has either party been given any warranty, statement, promise or representation made by or on behalf of the other which is not specifically set out in the Agreement. To the extent that any such warranties, statements, promises or representations have been given each party unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation to them, provided that nothing in this Clause 21.1 shall exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
21.2 A variation of the Agreement is valid only if it is in writing and signed by or on behalf of each party.
21.3 No failure or delay by any party to exercise any right, power or remedy shall operate as a waiver of it nor shall any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
21.4 The Customer shall not assign, delegate or otherwise transfer any of its rights and obligations under the Agreement without the prior written consent of Axiom. Axiom shall be entitled to assign the benefit and delegate the burden of the Agreement, and/or otherwise novate, sub-contract or dispose of any or all of its rights and/or its obligations under the Agreement or any part thereof to any entity.
21.5 Axiom shall have the right to subcontract its obligations under the Agreement.
21.6 If any clause or part of the Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed from the Agreement and shall be ineffective without, as far as is possible, modifying any other clause or part of the Agreement and this shall not affect any other provisions of the Agreement which shall remain in full force and effect.
21.7 All payments to be made by Customer to Axiom under the Agreement shall be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature unless the Customer is required by law to make any such deduction or withholding.
21.8 The parties do not intend that any of its terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
21.9 The formation, existence, construction, performance, and validity of the Agreement shall be construed in accordance with the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement. The parties irrevocably agree to submit to that jurisdiction except that each party may seek injunctive relief in any court of competent jurisdiction.