2.    SUPPLIER KEY RESPONSIBILITIES​

2.1    Supplier shall, subject to and in accordance with this Agreement and any applicable Order Form

2.1.1    from the Commencement Date and during any Subscription Period provide or procure the provision of the SaaS Service in accordance with and subject to the Service Levels and Incident Priorities

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2.1.2    provide any other Services specified in any Order Form

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2.1.3    provide any project meetings agreed under clause 3 and with the full co-operation and assistance of the Customer prepare and deliver any agreed Project Documents

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2.1.4    with the full co-operation and assistance of the Customer ensure that any Customer Content is fairly and accurately incorporated in the Software and/or SaaS Services

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2.1.5    with the full co-operation and assistance of the Customer install and provide access to any Software which Supplier has agreed to host on the SaaS Service

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2.2    If requested by the Customer, Supplier shall provide training in the use and operation of Software on the SaaS Service at its standard fees and charges (including expenses) from time to time. Supplier will use reasonable efforts to train the Customer's employees in the subject matter of the particular training course taking into account the level of skill and competence of each of the Customer's employees attending such a course but does not guarantee any resultant level of competence of any of the Customer's employees who attend such training. The Customer will ensure that its employees using the Software on or in connection with the SaaS Services are trained to a sufficient level to use them competently

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2.3    Supplier shall

2.3.1    provide the Services with all reasonable skill and care

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2.3.2    provide suitably skilled, trained and knowledgeable personnel to carry out the Services

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2.4    Other than as expressly provided in this Agreement, Supplier gives no other warranties and any warranties or conditions that might be                      implied by statute or otherwise into this Agreement, including but not limited to warranties and conditions of title, non-infringement,                          merchantability and fitness for a particular purpose, are expressly excluded to the fullest extent permitted by law

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3.    PROJECT MEETINGS AND DOCUMENTS

3.1    Supplier shall hold such project meetings as the parties may agree designed to elicit the Customer’s precise requirements for any Software or Services, such project meetings to be attended by such of the Customer’s staff as the Customer may designate. The Customer acknowledges and agrees that it is essential for Supplier to produce any Project Documents in a timely and professionally competent manner that the Customer ensures that its Customer Contacts attend and contribute effectively at and provide all information reasonably requested by Supplier at all such project meetings. As soon as practicable following any relevant project meeting, Supplier shall prepare and submit to the Customer for approval a draft of any Project Document which has been agreed by the parties to be a deliverable from such project meeting

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3.2    The Customer shall inform Supplier in writing within 5 Working Days of its receipt of the draft Project Document as to whether such draft is approved and, if not, what changes the Customer may reasonably require. Supplier shall use its reasonable endeavours to accommodate any such changes in a revised draft of the Project Document (provided that Supplier shall not be obliged to accommodate revisions that would take the Services or Software outside the scope of any agreed pre-project meeting document) and provided that the Customer agrees to any change in applicable pricing, estimated cost of Services or anticipated project timetable or any other adverse implications such requested changes may involve

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3.3    After revising the draft Project Document, Supplier shall re-submit it to the Customer for written approval, which the Customer shall not unreasonably withhold or delay. For the avoidance of doubt, in the event that the Customer does not approve for any reason any Project Document, Supplier shall be entitled to be paid for its time spent in connection with preparing such document and in performing other work under this Agreement up to and including any date that the parties agree to cease or suspend the delivery of Services under this Agreement

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4.    PROJECT MEETINGS

4.1    Supplier will nominate a Project Manager. The Customer Contact will manage the Customer’s interests and obligations under this Agreement. The Project Manager and Customer Contact shall, other than in exceptional circumstances, attend all of the meetings referred to in clause 4.3 below

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4.2    The parties shall use their respective reasonable endeavours to avoid changing any Project Manager or Customer Contact where such a change would be reasonably likely to impact adversely on the ability of either party to meet mutually planned outcomes for any project under this Agreement or any Order Form. In the event that a party makes a change to relevant personnel that has or would be reasonably likely to have the above stated adverse impact, until the parties have agreed such changes as are reasonably required to this Agreement or any Order Form, that party shall not be able to enforce any obligation against the other party the performance of which has been adversely affected by the change to personnel

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4.3    During the performance of all projects agreed to be undertaken by the parties hereunder each party agrees to respond promptly to any issues or requirements referred to it by the other party relating to the performance of the Services or any other obligations under this Agreement, and shall seek to resolve any problems arising in relation to the provision of the Services as quickly and effectively as possible. The parties shall meet or attend at teleconferences, webinars or other agreed arrangements at appropriate regular intervals in order to monitor the performance of the parties’ obligations and the progress of work with the aim of ensuring as best as practicable that completion of projects or work takes place in accordance with any applicable Project Document

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5.    CUSTOMER KEY RESPONSIBILITIES

5.1    Unless otherwise agreed in writing with the Supplier, the Customer will be solely responsible and liable for all Subscription Fees and other Service charges

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5.2    The Customer shall, subject to and in accordance with this Agreement and any applicable Project Document

5.2.1    if applicable, obtain, maintain and provide to Supplier all necessary authorisations, consents, licences and services required for Supplier to possess, install, operate, maintain, host, use or integrate any third party software (not being part of the System Environment) required by the Customer for use in conjunction with the Software on the SaaS Services

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5.2.2    if applicable, deliver in a timely manner any Customer Content and any required updates of Customer Content to Supplier for inclusion in the Software or the Services

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5.2.3    provide the Supplier with any information which it may reasonably require from time to time to enable Supplier to perform its obligations under this Agreement

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5.2.4    procure and/or supply, and if necessary, install, support and maintain all software, licences, hardware, network infrastructure, services and environmental and operational conditions required from the connection to the internet of Supplier’s computer system providing the SaaS Services to and at the Customer’s premises for it to use the SaaS Service

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5.2.5    promptly notify the Supplier of any changes the Customer requires to System Administrators authorised by Supplier to have access to the SaaS Services

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5.2.6    ensure that only adequately trained and authorised persons are permitted to use the SaaS Services and that Customer Users operate the SaaS Service and Software in accordance with this Agreement and operating procedures, guidelines, codes of conduct and processes reasonably specified from time to time by the Supplier

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5.2.7    be deemed to have accepted the SaaS Service for all purposes under this Agreement upon any use thereof for commercial production

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5.3    The Customer acknowledges and agrees that the Supplier’s ability to deliver the Services also depends upon the Customer’s timely cooperation and prompt response to issues or requirements referred to it in connection with the Services, as well as the accuracy and completeness of any information the Customer provides. Supplier is not responsible for any loss suffered by the Customer if the Customer does not provide it with this cooperation and information

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5.4    The Customer shall, for the purposes of this Agreement and if required by any Order Form, afford to the authorised personnel of the Supplier during normal working hours or as otherwise agreed access to any agreed Customer premises and shall provide adequate free working space and such other facilities at such premises as may be reasonably requested by Supplier to provide applicable Services. The Customer shall comply with its obligations under applicable health and safety regulations with respect to the provision of such access and facilities to Supplier. Supplier will take all practical steps to ensure that its personnel will, whenever on Customer’s premises, obey all reasonable security and health and safety standards, procedures and directions notified to it by the Customer

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5.5    The Customer acknowledges and agrees that it is solely responsible for complying with any laws or paying any taxes duties and tariffs applicable in any way to its use of the Services (other than taxes on the net income of Supplier) and will hold harmless protect indemnify and defend Supplier and its subcontractors from any claim action suit penalty tax fine or tariff arising from such use of the Services or exercise of internet electronic commerce and/or any failure to comply with any such laws taxes duties and tariffs. This indemnity will survive any termination of this Agreement

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6.    FEES AND PAYMENTS

6.1    Subscription Fees and other fees for Services shall be invoiced to and paid by the Customer in advance of the period to which they relate or otherwise at the discretion of Supplier or, if applicable, in accordance with any payment profile set out in any Order Form. In the event of any termination of this Agreement during any agreed Minimum Term, the whole of the Subscription Fees and Services Fees (together with VAT thereon) payable with respect to such Minimum Term shall become immediately due and payable. Invoices and payments shall be in Pounds Sterling (£) unless otherwise agreed. Except for any payment due and payable as set out in any Order Form, all payments shall be made by the Customer within thirty (30) days of the date of the appropriate tax invoice issued by Supplier​

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6.2    Unless otherwise agreed in any Order Form, all Services shall be charged on a time and materials basis. Any estimated fee is based on the number of days estimated by Supplier as being required for the provision of the relevant agreed Services. Subject to clause 6.7, Supplier shall be entitled to charge the Customer for any additional days required in order to complete the provision of agreed Services. Supplier shall also be entitled to charge for additional days attributable to any changes agreed by the parties to Project Documents or Services to be delivered under this Agreement or to any breach of this Agreement by the Customer

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6.3    Unless otherwise agreed in any Order Form, the Customer shall reimburse Supplier for any reasonable expenses necessarily incurred by Supplier in connection with the provision of the Services

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6.4    The Subscription Fees and other fees for Services are exclusive of Value Added Tax or other Government imposed excises or taxes (if any) which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law. All sums payable to Supplier under this Agreement shall be paid free and clear of all deductions or withholdings unless the deduction or withholding is required by law. If any deduction or withholding is required by law to be made from any such sum the Customer shall pay such additional amount as shall be required to ensure that the net amount received by Supplier will equal the full amount which would have been received by it had no such deduction or withholding been made

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6.5    In accordance with the Late Payments Of Commercial Debts (Interest) Act 1998, if any sum payable under this Agreement is not paid within 30 days after the due date then (without prejudice to Supplier’s other rights and remedies) Supplier reserves the right to suspend the provision of the Services and/or to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the statutory interest rate set by the Secretary of State from time to time pursuant to section 6 of the said Act which shall include the base rate of Bank of England (or such other London Clearing Bank as Supplier may nominate) from time to time in force compounded quarterly. Such interest shall be paid on demand by Supplier. To be excluded from the late payment charge a bona fide disputed invoice amount shall be notified in writing to Supplier within fourteen days of receipt of the relevant invoice

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6.6    Except where otherwise agreed by the parties in writing, the Services shall be provided between the hours of 09:00 and 17:00 Monday to Friday excepting United Kingdom statutory holidays. Where the Services are provided outside these times at the written request of the Customer, Supplier may increase its then current per hour and per day rates by 50% in the case of Services provided outside of these hours Monday to Friday and on a Saturday or by 100% in the case of Services provided on a Sunday or United Kingdom statutory holiday

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6.7    As soon as practicable upon becoming aware that the number of days estimated for the provision of any agreed Services will need to be exceeded to enable the relevant Service to be completed or delivered Supplier shall notify the Customer of the fact and the reasons therefore and provide to the Customer Supplier’s best estimate of the additional days required to complete the provision of the relevant Service. Supplier shall not be entitled to invoice the Customer for any days in excess of those estimated with respect to any Service without the consent of the Customer provided that the Customer acknowledges and accepts that the withholding of any such consent by it may result in the relevant Service not being completed or delivered

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6.8    Once a date for the delivery of Services has been agreed by the Customer and Supplier then both parties will take all reasonable steps to prevent that date being cancelled or postponed. In the event that a date for delivery of a Service (other than the SaaS Service) is cancelled or postponed by the Customer for any reason and, having made all reasonable endeavours to do so Supplier is unable to redeploy to alternative paid services resources it has allocated to the delivery of such Services on such date, the following charges shall apply​

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6.8.1    if cancelled or postponed within 4 Working Days of the agreed date there will be payable by the Customer a charge calculated at 100% of the Services fees that Supplier would otherwise have been entitled to charge the Customer for the delivery of Services on that date

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6.8.2    if cancelled or postponed between 4 and 8 Working Days of the agreed date there will be payable by the Customer a charge calculated at 50% of the Services fees that Supplier would otherwise have been entitled to charge the Customer for the delivery of Services on that date​

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6.9    Supplier reserves the right to cancel or postpone any Services in the event of circumstances beyond its control, in which case its liability will be limited to refunding any fees paid in respect of the delivery of that course on that date

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6.10    The Customer acknowledges and agrees that if any amount under any invoice (not subject to a bona fide dispute) is not paid on the due payment date then Supplier shall be under no obligation to continue to provide the SaaS Services or other Services to the Customer and delivery of such services may be suspended (without prejudice to Supplier’s rights under clause 14) unless and until the relevant invoice shall be paid in full. The Customer shall indemnify Supplier against all legal and other fees and expenses incurred or charged by it in relation to the collection of any overdue accounts under this Agreement or to re-active any Service suspended under this clause 6.10

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7.    RIGHTS IN SERVICES, SOFTWARE AND DATA

7.1    Subject to any special terms that Supplier may agree with the Customer in any Order Form, the Customer acknowledges and agrees that Supplier Intellectual Property whenever created shall remain the exclusive property of Supplier and the Customer shall have no rights in respect thereof save as may be granted to it by Supplier pursuant to this Agreement or in accordance with any licence or agreement which Supplier may enter into with the Customer from time to time. For the avoidance of doubt, Supplier Intellectual Property shall include, without limitation, original work specifically undertaken by Supplier for the purposes of fulfilling its obligations under this Agreement and in order to meet any facilities or functionality required by the Customer in any Software whether or not such original work is identified under any Project Document, specification or other documentation. The Customer agrees to use the Supplier Intellectual Property only as provided in this Agreement and to not use it to develop software for third parties or for any other purpose without the prior written authorisation of Supplier

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7.2    The Customer acknowledges and agrees that subject to clauses 7.3 and 16.4

7.2.1    all intellectual property rights of any kind in any Database and all Supplier Intellectual Property shall be the exclusive property of Supplier

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7.2.2    Supplier has spent, and continues to spend, considerable time and resources to collate, compile and reformat the contents of any Database and accordingly all intellectual property rights of any kind in such contents shall be the exclusive property of Supplier

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7.2.3    Supplier grants to the Customer a non transferable perpetual licence to possess and use for its own internal purposes only all data, reports and information, including without limitation Customer Data, derived from any Database by the Customer through its lawful and proper use of the SaaS Services during such Subscription Periods in respect of which the Customer shall have paid to Supplier in advance all applicable Subscription Fees

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7.3    Supplier acknowledges and agrees that copyright in Customer Content and Customer Data may belong to the Customer or a third party and for the avoidance of doubt asserts no claim pursuant to this Agreement inconsistent with any such rights

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7.4    If Supplier provides or makes available to the Customer as part of or in connection with SaaS Services data reports or information the use of which is subject to conditions or restrictions, third party or otherwise notified to the Customer, the Customer agrees to comply with such conditions or restrictions

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7.5    The Customer agrees that it will not make more copies of data reports or information provided to it or made available to Customer as part of or in connection with SaaS Services than is reasonably necessary for its own internal purposes and shall only publish and circulate such reports or information within its own organisation

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7.6    The Customer agrees

7.6.1    to not copy data reports or information provided or made available to Customer as part of or in connection with SaaS Services to create a complete or material reconstruction of any Database

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7.6.2    to not use data reports or information provided or made available to Customer as part of or in connection with SaaS Services to provide any service competing with Software based services

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7.7    The Customer shall

7.7.1    not remove or interfere with any trademarks, copyright or trademark notices affixed or installed by Supplier on any Service or copy of the Software or other Supplier Intellectual Property

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7.7.2    without prejudice to the foregoing take all such other reasonable steps to protect the confidential information and intellectual property rights of Supplier in the Supplier Intellectual Property in its possession or control from access use or copying not authorised by this Agreement

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7.8    Subject to clause 15, if, at any time that Supplier is providing the SaaS Services to the Customer, the Customer requests that Supplier provide it with a copy of the Customer Data held by Supplier on the SaaS Services, Supplier shall provide the Customer with a copy of such Customer Data as at the date of the request, or at such other date as is agreed, provided that the Customer shall have paid to Supplier

7.8.1    any data transfer fee specified for such data transfer from time to time or as otherwise agreed (together with the cost of any medium upon which such data is transferred)

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7.8.2    all other invoices issued by Supplier with respect to the Services provided to the Customer

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7.8.3    any fees or charges at Supplier’s then applicable rates raised by Supplier for the provision of any assistance reasonably requested by the Customer and provided or to be provided by Supplier in connection with the transfer of such Customer Data

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7.9    Clause 7 shall survive any termination of this Agreement

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8.    SERVICE USE

8.1    The Customer unconditionally represents warrants and undertakes that all Customer Content including without limitation any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Supplier for the development of or integration into or use with or communication through the Services or the Software

8.1.1    are owned by the Customer or that the Customer has permission from the rightful owner to use such Customer Content in the Services or Software in the manner and for the purposes required or approved by the Customer from time to time

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8.1.2    are in no way whatsoever a violation or infringement of any third party Intellectual Property, right of privacy or publicity or any other rights of any person and that they are not obscene, libellous or defamatory or in any other way unlawful and will not in any way inhibit restrict or impair the free and/or unrestricted performance by Supplier of any rights or obligations it has under this Agreement

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8.2    The Customer represents and warrants that

8.2.1    it possesses the legal right and ability to enter into and comply with this Agreement and any licence conditions attaching from time to time to the use of the Software

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8.2.2    it will use the Services and Software for lawful purposes only and in accordance with all applicable laws, regulations and Supplier policies

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8.2.3    it will not attempt to decompile, reverse engineer or hack any website or computer network Supplier uses in connection with the SaaS Services or to defeat or overcome any encryption and/or other technical protection methods implemented by Supplier with respect to any such website or network and/or data transmitted, processed or stored by Supplier or other users of such website or network

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8.2.4    it will not use any automatic or manual device or process nor take any steps (including penetration testing, without the prior written authority of Supplier) to interfere with or in any manner compromise any security measures or the proper working of any website or computer network Supplier uses in connection with the SaaS Services

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8.2.5    it will ensure that Customer Users do not use any other individual’s or entity’s login or identity or any unauthorised or inadequately licensed computer, device or facility to access or use the SaaS Services or any website or computer network Supplier uses in connection with the SaaS Services and that only System Administrators login and exercise System Administrator rights and privileges on any such website or network

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8.2.6    it will not collect any information or communication about Supplier or users of SaaS Services by monitoring, interdicting or intercepting any process of the Services or the Software

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8.2.7    it will notify Supplier, as soon as practicable, if any changes to the Customer’s business operations or practices may adversely affect the SaaS Service or Supplier’s obligations under this Agreement

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8.2.8    it will not use any facility, device, software code or software instruction that is designed or intended to be used to provide a means of surreptitious or unauthorised access or that is designed or intended to distort, delete, damage or disassemble the Software or Service or any website or computer network Supplier uses in connection with the SaaS Services

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8.2.9    it will not use the Software or the SaaS Services to develop, generate, transmit or store information that infringes any third party’s intellectual property or other proprietary right or is defamatory, harmful, abusive, obscene or hateful or performs any unsolicited commercial communication not permitted by applicable law or is harassment or a violation of privacy or threatens others or impersonates any other person or steals or assumes any person’s identity (whether a real identity or online nickname or alias); and

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8.2.10   if requested by Supplier on reasonable grounds it will provide true, accurate, current and complete information on its use of any website or computer network Supplier uses in connection with the SaaS Services

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8.3    Supplier reserves the right to involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in actions that may involve breaches of this clause 8

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8.4    If Supplier has reasonable grounds to suspect that the Customers representations, warranties or promises are inaccurate or breached, Supplier may suspend (without prejudice to any right to terminate) the Customer’s rights, benefits or services under or terminate this Agreement and any licence attaching from time to time to the use of the Software or Services

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8.5    The Customer hereby agrees to hold harmless protect indemnify and defend Supplier and its subcontractors from any liability (including legal and administrative fees and costs on a full indemnity basis) or any claim, prosecution or suit, threatened or actual, arising from any breach by the Customer of its obligations under this clause 8 or from any use by Supplier of Customer Content authorised by the Customer

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8.6    The foregoing warranties, promises and indemnities in this clause 8 shall survive any termination of this Agreement

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9.    GROUP COACHING DELIVERED WITHIN THE SERVICES

9.1    Group coaching sessions form an integral part of the Services provided by the Supplier during the Subscription Period. The number of group coaching sessions provided to the Customer for use during each Subscription Period are detailed in the Order Form. Group coaching sessions are to be used within each Subscription Period and may not be carried over to the following Subscription Period.

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9.2    Group coaching sessions will be scheduled in advance on dates agreed with the Customer. Any changes to these dates must be done in advance of the timings identified in clause 6, with cancellation charges outlined in clauses 6.9 and 6.10 applicable to the group coaching as part of the Services being delivered.

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9.3    The Services will only be completed by a coach fully competent to perform such work. The Supplier retains the right to change the coach assigned to the Customer as required.

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10.  DISPUTE RESOLUTION

Each party shall use its best endeavours to resolve amicably and expeditiously any dispute which may arise between them concerning this Agreement, any Project Document or any documents incorporated by reference therein. If a dispute cannot be resolved amicably within 7 days of such dispute being notified in writing by one party to the other for the purposes of this clause then the dispute shall be determined as follows

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​10.1    If the dispute is a Technical Dispute then such dispute shall be referred to the next scheduled meeting of the project team or a meeting of the Project Manager and Customer Contact expeditiously convened for this purpose

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10.2    If such meeting cannot resolve a Technical Dispute to the satisfaction of both parties then the dispute will be referred as a matter of urgency to an appropriately qualified senior manager or director of each party

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10.3    If such senior managers or directors cannot resolve a Technical Dispute within 21 days of the meeting referred to in clause 10.1 or such other period that they may agree then the parties shall attempt to settle the dispute by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give an ADR notice in writing to the other party to the dispute requesting a mediation. A copy of the request shall be sent to CEDR Solve. The mediation will start not later than 10 Working Days after the date of the ADR notice. If the matter has not been resolved by mediation within 30 days of the initiation of such procedure, or if a party will not properly participate in the mediation procedure within 5 days of a request by the other party, the dispute shall be resolved in accordance with clause 10.4

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10.4    Non technical disputes shall be referred as a matter of urgency to appropriate senior management of each party and if they cannot resolve such dispute within 21 days of it being referred to them then the dispute shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of those courts for such purpose

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11.  LIABILITY AND LIMITATIONS

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CUSTOMER’S ATTENTION IS EXPRESSLY DRAWN TO THE PROVISIONS OF THIS CLAUSE

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11.1      Limitation of liability.

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The obligations accepted by Supplier in clause 2.3 are in lieu of all other warranties of any kind, express or implied, regarding any software, services, data, reports or documentation including any SaaS Services provided or procured by Supplier including warranties of quality, performance, non-infringement, merchantability, or fitness for a particular purpose or created by course of dealing, course of performance, or trade usage. Further Supplier does not represent or warrant that the Software, the SaaS Service or any third party service will always be available, accessible, uninterrupted, timely, secure, accurate, complete, error-free, or will operate without packet loss, nor does Supplier warrant any connection to or transmission from the internet

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The Software or SaaS Services may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Supplier is not responsible and shall have no liability of any kind for any delays, delivery failures or other damage or loss resulting in any way from such use

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Supplier accepts no liability of any kind whatsoever, including liability for negligence, for the continuing existence, operation, interoperability, facilities or functions or consequences direct or indirect of any Customer using the internet or any other electronic communications facility to access the SaaS Services

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In no event shall Supplier be liable for indirect, consequential, or incidental damages (including damages for loss of business profits or anticipated savings, business interruption, loss of business information or employee relations issues) however caused (including negligence) arising out of the relationship between Supplier and the Customer even if it has been advised of the possibility of such damages

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In any event Supplier’s cumulative liability under this Agreement or any transaction contemplated hereunder or for any software data report or information or service provided to the Customer or any defect or failure therein or arising from any court of competent jurisdiction holding any of the above warranties or disclaimers or limitations of liability invalid, including any cause of action in contract, tort or strict liability, shall be limited to the amount of fees paid by the Customer to Supplier under this Agreement during the 12 months prior to such event. Supplier’s limitation of liability is cumulative with all Supplier expenditures to address liability being aggregated to determine satisfaction of the limit. The Customer releases Supplier from all obligations, liabilities, claims or demands in excess of the limitation. The parties acknowledge that other parts of this Agreement rely upon the inclusion of this clause 10 and the resulting allocation of risks

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Nothing in this Agreement shall exclude or limit the liability of Supplier, its service entities and personnel for fraud or death or personal injury caused by their negligence or the negligence of their employees, agents or contractors

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11.2      Customer acknowledges and agrees that Supplier has no liability of any nature whatsoever

11.2.1    to any person for the content of any third party communications publications or sources from which any data, reports or information is provided through Customer’s use of the SaaS Service or other applicable Service or

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11.2.2    for such data, reports or information including without limitation its accuracy, quality, integrity, reliability or appropriateness for any purpose and the Customer shall be solely responsible and liable for any use it makes of such data, reports or information including any breach of copyright or other right obligation or duty recognised by the laws of any jurisdiction

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11.2.3    for any employment relations issues that may arise from time to time within the Customer’s business, either prior to or after using the Supplier’s Services

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11.3      Supplier does not give any opinions or advice concerning the use or non use of any data reports or information provided or available to the Customer through its use of the SaaS Services or any applicable third party service. Such data reports or information may need further expert or specialist advice or interpretation to be obtained by the Customer before they can be fully or partly understood or assessed or use made of or reliance placed on them. The exception to this clause is when advice is being given by the Supplier as part of an agreed Service

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11.4      Supplier accepts no liability for any claim notified to it more than six months after the date of receipt by the Customer from Supplier of the data report or information in respect of which the claim arises

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11.5      Notwithstanding any other provision of this Agreement Supplier does not warrant that use or operation of the Software or the SaaS Services will be uninterrupted or error-free

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11.6      As some jurisdictions do not allow some of the exclusions set out in this clause 11, some of these exclusions may not apply to you. In the event that any court of competent jurisdiction rules any other limitation of liability invalid or unenforceable, Supplier’s total aggregate liability shall not exceed the total sum which Supplier may recover with respect to its liability for such loss or damage under either its general third party insurance or professional indemnity insurance (which at the date of this Agreement is with respect to professional indemnity not less than £1,000,000 for any one claim or series of claims arising out of one incident or event)

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11.7      For the avoidance of doubt, time shall not be of the essence of this contract. If Supplier shall fail to provide access to or use of the Software or any Service by any applicable agreed date, other than as a consequence of any act or omission of the Customer (whether or not such act or omission constitutes a breach of this Agreement) or a third party over which Supplier has no control or responsibility, then Supplier shall provide such resources as may be at its disposal and reasonably required in order to provide access to or use of the Software or such Services within the shortest possible time thereafter and compliance by Supplier with this clause 11.7 shall be in full and final settlement of any liability it may have for any loss or damage suffered by the Customer as a result of such failure by Supplier

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11.8      The limitations contained in this section do not apply to either the Customer or Supplier for breach of their respective confidentiality obligations in clause 13 or for breaches of each other’s intellectual property rights

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11.9      The Customer and Supplier agree that all terms and limitations of this Agreement, including the warranty and liability limitations and exclusions, are fair and reasonable in light of the amounts to be paid by the Customer, the nature of the Services, the strength of the bargaining position of each party, the alternative ways the Customer needs could have been met and the potential benefits and risks for both party in entering into this Agreement

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12.  FORCE MAJURE

Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing its obligations under this Agreement or any Project Document if such delay is caused by circumstances beyond its reasonable control and any delay caused by any act or omission of the other party (whether or not such act or omission constitutes a breach of this Agreement) or a third party provided however that any delay by a sub-contractor or supplier of the party so delaying shall not relieve that party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned. The performance of the affected party’s obligations shall be suspended during the period that the relevant circumstances persist and, if applicable to any obligation under this Agreement or any Project Document, the affected party shall be granted an extension of time for performance equal to the period of the delay. Except where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law) any costs arising from such delay shall be borne by the party incurring the same. Both parties will in any event use all reasonable endeavours to mitigate the impact of any event of force majeure and to recommence performance of their obligations under this Agreement as soon as reasonably possible

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13.  CONFIDENTIALITY

13.1      Definition of Confidential Information and Exclusions.

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If any party has any doubts about what constitutes Confidential Information then such party agrees to consult with the other party before acting in any manner that may breach its obligations under this Agreement

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Confidential Information shall not include any information, however designated, that

13.1.1    is or subsequently becomes publicly available without Receiving Party's breach of any obligation owed to Disclosing Party

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13.1.2    became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to or prior to or in contemplation of this Agreement

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13.1.3    became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party

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13.1.4    is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information or

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13.1.5    constitutes Suggestions

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13.2      Obligations Regarding Confidential Information. Receiving Party shall

13.2.1    refrain from disclosing any Confidential Information of the Disclosing Party to third parties for ten (10) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party

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13.2.2    take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party and shall procure that all of its directors, employees, professional advisers and sub-contractors who have access to any information of the disclosing party to which the obligations of clause 13 apply shall be made aware of those obligations

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13.2.3    not disclose any Confidential Information to its sub-contractors without first obtaining their written agreement to confidentiality obligations no less onerous than those set out in this clause 13

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Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order, provided that Receiving Party either

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13.2.4    gives the Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or

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13.2.5    obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in clause 13.2.4

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Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this clause 13 by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure

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Upon termination of this Agreement for any reason, Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify destruction of the same

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13.3      Miscellaneous.

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The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction

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All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein

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13.4      Suggestions.

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The Customer may from time to time provide Suggestions to Supplier. Both parties agree that all Suggestions are and shall be given entirely voluntarily. Suggestions, even if designated as confidential by the Customer, shall not, absent a separate written agreement, create any confidentiality obligation for Supplier. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, Supplier shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Suggestions provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise

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