“Agreement”
means this framework software as a service agreement;
“Business Day”
means any day other than a Saturday, a Sunday or a public holiday in England and Wales;
“Confidential Information”
has the meaning given in clause 15.1;
“Content”
has the meaning given under the section titled “Background”;
“Customer Systems”
means all computer equipment (including mainframes, personal computers, servers and client/server stations), all associated or interconnected network equipment, routers, semi-conductor chips, software and communication lines, and all other equipment (including printers, copiers, fax machines and telephones), owned, licensed or operated by, or operated on behalf of the Customer;
“Data”
means information the Customer or Users give the Service Provider, information the Service Provider collects about the Customer or User and information the Service Provider receives from other sources;
“Data Breach”
means (i) any unauthorised loss, corruption, damage, destruction, alteration, disclosure or access to any Personal Information; (ii) any unauthorised or unlawful Processing of Personal Information; or (iii) any breach of Data Privacy Laws;
“Data Controller”
has (until 25 May 2018) the meaning given to “Controller” under the Data Protection Directive 1995/46/EU and (from 25 May 2018) the meaning given to “Controller” under the General Data Protection Regulation (EU 2016/679);
“Data Privacy Laws”
means all laws in any relevant jurisdiction that relate to data protection, privacy, the use of information relating to individuals, and/or the information rights of individuals including, without limitation, (until 25 May 2018) the Data Protection Act 1998 and any other laws in force from time to time which implement the Data Protection Directive 1995/46/EC and (from 25 May 2018) the General Data Protection Regulation (EU 2016/679), and the equivalent in any other relevant jurisdictions all as amended or replaced from time to time;
“Data Processor”
has (until 25 May 2018) the meaning given to “Processor” under the Data Protection Directive 1995/46/EU and (from 25 May 2018) the meaning given to “Processor” under the General Data Protection Regulation EU 2016/679);
“Data Subject”
has (until 25 May 2018) the meaning given under the Data Protection Directive 1995/46/EC and (from 25 May 2018) the meaning given under the General Data Protection Regulation (EU 2016/679);
“Delio Solution”
has the meaning given under the section titled “Background”;
“Designated Information System”
means the information system designated by a party under this Agreement to receive electronic notices pursuant to this Agreement;
“Device”
means desktop machine, laptop, mobile telephone or handheld device on which the Service is to be used;
“Documents”
has the meaning given under the section titled “Background”;
“EEA”
means the member states of the European Union, Norway, Iceland and Liechtenstein;
“FSMA”
has the meaning given under the section titled “Background”;
“Group”
means in relation to a company (wherever incorporated), that company, its Subsidiaries, any company of which it is a Subsidiary (its holding company), and any other Subsidiaries of any such holding company, and each company in a Group is a member of the Group;
“ICO”
means the UK Information Commissioner’s Office, or the equivalent national data protection authority in any relevant jurisdiction;
“Initial Subscription Term”
means the initial term of the Subscription as set out in the Subscription Form;
“Intellectual Property Rights”
means any of these rights, namely:
(a) patents, trade marks, rights in design, get-up, trade dress, trade, business or domain names, copyrights including rights in computer software and databases (including database rights) and topography rights (in each case whether registered or not and, where these rights can be registered, any applications to register or rights to apply for registration of any of them), and where applicable any associated goodwill;
(b)rights in inventions, know-how, trade secrets and other confidential information; and
(c) any other intellectual property rights which may exist at any time in any part of the world;
“Laws”
means:
(a) any applicable statute or proclamation or any delegated or subordinate legislation;
(b) any enforceable community right within the meaning of section 2(1) European Communities Act 1972 (if the Customer is subject to the European Community laws);
(c) any applicable judgment of a relevant court of law which is a binding precedent in England and Wales; and
(d) any requirements of any regulatory body,
in each case in force at any time during the term of this Agreement;
“Losses”
means all losses, liabilities, damages, costs, claims and expenses howsoever arising (including reasonable legal fees on a solicitor and own client basis and other professional advisors’ fees, and disbursements and costs of investigation, litigation, settlement, judgment, interest, penalties and remedial actions) and “Loss” shall be construed accordingly;
“Optional Services”
means:
(a) planned on-site assistance which may include planned training sessions, end user support and configuration services; and
(b) any services that the Customer and the Service Provider may from time to time agree will be supplied to the Customer by the Service Provider under the terms of this Agreement;
“Personal Information”
means any information which: i) falls within the definition of “Personal Data” under the Data Protection Directive 1995/46/EU (until 25 May 2018) and within the definition of “Personal Data” under the General Data Protection Regulation EU 2016/679 (from 25 May 2018); and ii) in relation to which the Service Provider is providing the Delio Solution or which the Service Provider is required to Process (subject to the Data Privacy Laws) in connection with this Agreement;
“Permitted Recipients”
means personnel of the Service Provider (including members of the Service Provider’s Group and the Service Provider’s subcontractors) or the Customer and the Users who are engaged in the performance, management, receipt or use of the Delio Solution as well as the receiving party’s auditors and professional advisers;
“Platform Service”
has the meaning given under the section titled “Background” and includes providing access to Users to the Delio Solution;
“Processing”
has (until 25 May 2018) the meaning given under the Data Protection Directive 1995/46/EU and (from 25 May 2018) the meaning given under the General Data Protection Regulation EU 2016/679) (and Process, Processed and Processes shall be construed accordingly);
“Service”
has the meaning given under the section titled “Background”;
“Subscription”
means the subscription specified in the Subscription Form which entitles Users to Use the Delio Solution;
“Subscription Fees”
means the fees payable by the Customer to the Service Provider for the Subscription, as set out in the Subscription Form;
“Subscription Form”
means the completed form or forms agreed between the parties for the Services;
“Subsidiary”
in relation to a company wherever incorporated means a “subsidiary” as defined in the relevant companies legislation in the relevant territory) and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company;
“Use”
means installation, access and use of the Delio Solution and “Used” shall be construed accordingly;
“User Content”
means any content provided by the Users;
“Users”
means those employees and contractors of the Customer who are authorised by the Customer to Use the Delio Solution; and
“Viruses”
means any item (including any software, code, file or programme) which may:
(a) 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
(b)adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2.1 the table of contents and headings are used for convenience only and do not affect its interpretation;
1.2.2 references to clauses and schedules are to the clauses and schedules of this Agreement;
1.2.3 references to the parties are to the parties to this Agreement;
1.2.4 references to a statutory provision include references to the statutory provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision;
1.2.5 the relevant Subscription Form, forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement, and any reference to this Agreement includes the Subscription Form;
1.2.6 notwithstanding the generality of clause 1.2.5, in the event that the terms of the Subscription Form conflict with clauses 1 to 24 of this Agreement, clauses 1 to 24 of this Agreement shall prevail;
1.2.7 references to a “person” shall include individuals, bodies corporate, unincorporated associations and partnerships; and
1.2.8 the phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
Subject to the Customer purchasing the Subscription in accordance with clause 11, the restrictions set out in this clause 2, and the other terms and conditions of this Agreement, the Service Provider grants to the Customer from the date of signing this agreement a non-exclusive, non-transferable right to permit the Users to Use the Delio Solution for the purpose of allowing the Customer and Users to display, share and search for investment opportunities offered by the Customer.
2.1 In relation to the Users, the Customer undertakes that it shall procure that each User:
2.1.1complies with the terms of this Agreement or as otherwise notified to the Customer by the Service Provider from time to time; and
2.1.2 will keep a secure password for the User’s Use of the Delio Solution and shall keep such password confidential.
2.2 Without limiting the above in any way, the Customer (and the Customer shall procure that the Users) must not:
2.2.1 use the Delio Solution in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by using another User’s account, or by hacking into or inserting malicious code, including Viruses, or harmful data, into the Delio Solution, or any operating system;
2.2.2 infringe the Service Provider’s Intellectual Property Rights or those of any relevant licensor or any third party in relation to its use of the Delio Solution;
2.2.3 transmit any material that is defamatory, offensive or otherwise objectionable in relation to its use of the Delio Solution;
2.2.4 use the Delio Solution in a way that could damage, disable, overburden, impair or compromise the Service Provider’s systems or security or interfere with other users;
2.2.5 collect or harvest any information or data from the Delio Solution, or from the Service Provider’s systems, except for User Content or Content for which the User has obtained written permission from the relevant party to use;
2.2.6 attempt to decipher any transmissions to or from the servers running any Delio Solution; or
2.2.7perform any security testing of the Delio Solution or the Service’s hosting platform either manually or utilising any automated system.
2.3 Except as expressly set out in this Agreement or as permitted by Laws, the Customer (and the Customer shall procure that the Users) agrees not to:
2.3.1copy the Delio Solution except for the purposes of providing the Content to Users as part of the receipt of the Service and Platform Services provided that this shall not allow the Users to copy any of the code within the Service nor any concepts in the Content or Documents;
2.3.2 rent, lease, sub-license, loan, distribute, disclose, or otherwise commercially exploit the Delio Solution or otherwise make it available in whole or in part to any third party;
2.3.3 make alterations to, or modifications of, the whole or any part of the Delio Solution, or permit the Delio Solution or any part of it to be combined with, or become incorporated in, any other programs, unless such alterations or modifications are carried out or approved, overseen and managed by the Service Provider; or
2.3.4 disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Delio Solution or attempt to do any such thing.
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or Use of, the Delio Solution and, in the event of any such unauthorised access or Use, promptly notify the Service Provider.
2.5 The rights provided under this clause 2 are granted to the Customer and the Users only, and are not granted to any of their:
2.5.1 Subsidiary or holding companies;
2.5.2 related companies, affiliates, parent undertakings or Subsidiary undertakings (as those terms or similar terms are defined in the Laws of England and Wales or any other relevant territory); or
2.5.3 connected bodies.
3.1 If the Customer wishes to make changes to the term of the Subscription:
3.1.1 the Customer shall notify the Service Provider in writing;
3.1.2 the Service Provider shall evaluate such request and respond to the Customer with approval or disapproval of the request;
3.1.3 if the Service Provider agrees to the request it shall issue the Customer with a new Subscription Form detailing the change and any additional terms applicable to the change and setting out the date from which the new Subscription Form shall become effective (“Change Date“); and
3.1.4 the Customer shall be entitled to withdraw the request by written notice given no later than [5] Business Days before the Change Date, otherwise the Subscription shall be amended in accordance with the Subscription Form issued under Clause 3.1.3 from the Change Date.
4.1.1 the Customer agrees and accepts that Delio Connect is intended to give users from other customers of the Service Provider access to the Delio Platform provided under this Agreement including User Content and access to Users to the Delio Platform provided under the Service Provider’s contract with its other customers (“Functionality“);
4.1.2 the Functionality is included within the Services, Platform Services and Delio Solution and the Customer shall take steps to ensure that it is able to comply with its obligations in respect of the Services, Platform Services and Delio Solution;
4.1.3 the Customer is responsible for ensuring that only Content which it wishes to be shared with users from other customers of the Service Provider is made available to them;
4.1.4 the Customer shall not and shall procure that its Users shall not seek to access any Content of other customers of the Service Provider by way of the Functionality other than Content which is expressly shared using the Functionality;
4.1.5 this Agreement governs the provision of the Services and Delio Solution and the Customer is responsible for regulating its relationship with other customers of the Service Provider using Delio Connect Functionality;
4.1.6 the Service Provider is not responsible for any Content posted by other customers of the Service Provider which may be accessible through the Functionality;
4.1.7 the Service Provider is not liable to the Customer for any act or omission of other customers of the Service Provider using Delio Connect Functionality.
5.1 The Service Provider shall use reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:
5.1.1 planned maintenance carried out during the maintenance window of [8 a.m. to 10 a.m. Monday] (Greenwich mean time); and
5.1.2 unscheduled maintenance, provided that the Service Provider has used reasonable endeavours to give the Designated Customer Contact at least 24 hours’ notice in advance.
5.2 The Service Provider reserves the right to request User or Customer feedback in relation to the Delio Solution by using any technical means including the use of pop-ups during the receipt of the Services or using the Service Provider’s website, or by email.
5.3 For the avoidance of doubt, the Delio Solution expressly excludes:
5.3.1 the development of any interface between the Delio Solution and any Customer Systems;
5.3.2 future generations of the Delio Solution;
5.3.3 supply of hardware and mobile phone devices; and
5.3.4 any services regulated by FSMA or any equivalent Law in any jurisdiction in which the Service Provider operates.
5.4 The Service Provider keeps the features and functionality of the Delio Solution and the Platform Services under review on an ongoing basis and may alter the features or functionality of the Delio Solution or the Platform Services from time to time to resolve operational issues, comply with Law or as it otherwise chooses, in its sole discretion.
The Customer may from time to time request the Service Provider to supply Optional Services. Optional Services are not included in the scope of the Subscription and will incur Additional Fees. The Service Provider will use its reasonable endeavours to comply with the Customer’s request for Optional Services, but the Customer acknowledges that the Service Provider’s ability to supply such Optional Services will depend on the availability of appropriate resources at the time in question.
7.1 The Service Provider shall follow its standard archiving procedures for the User Content. However, the Delio Solution is not a data storage solution and the Customer shall maintain (and shall require Users to maintain) a record and backup of all User Content. In the event of any loss or damage to the User Content, the Service Provider shall use reasonable endeavours to restore the lost or damaged User Content from the latest back-up of such User Content maintained by the Service Provider in accordance with its archiving procedure. Notwithstanding the foregoing, the Service Provider shall not be responsible for any loss, destruction, alteration or disclosure of User Content caused by any third party.
7.2 The Customer acknowledges that:
7.2.1 unauthorised copying of the Content is not permitted, unless the Customer has written permission from the owner of the Content;
7.2.2 where the provision of Content relies on third party consent, the Service Provider reserves the right to:
(a) remove or restrict access to such Content at any time; and/or
(b) require that the Customer returns to the Service Provider the Content or destroys any physical copies of the Content (as applicable),
if the requisite third party consent is withdrawn;
7.2.3 the Service Provider’s prior written approval, which shall not be unreasonably withheld, must be obtained for the Customer to disclose any part of the Content or Documents to third parties; and
7.2.4 any comments the Customer makes in relation to the Delio Solution must be accurate and not misleading.
7.3 The Customer shall not represent or cause others to believe that the Content is the Customer’s original works, or that the Service Provider endorses or is affiliated with any entity, product or service. The Customer expressly agrees to display the Service Provider’s (and relevant licensors’, if any) copyright and proprietary notice(s) with all of the Content, or any portion(s) thereof, that the Customer uses.
7.4 Any User Content may be subject to the Service Provider’s review. While the Service Provider reserves the right to review, monitor, remove or delete User Content, the Service Provider is under no obligation to do so and as between the parties the Customer is responsible for all User Content.
7.5 The Service Provider reserves the right at its sole and absolute discretion to restrict access to the Delio Solution, refuse to display User Content on the Service, remove User Content from the Service, or refuse to use any User Content if the Service Provider considers it necessary or appropriate, including if the Service Provider receives a complaint alleging Intellectual Property Rights infringement or if the User Content is deemed by the Service Provider to be objectionable, to potentially infringe any third party rights, or to be contrary to applicable Laws or otherwise unsuitable for use in the Delio Solution.
7.6 If, in the Service Provider’s sole judgment, any User Content is in violation of applicable Laws, such User Content may be reported by the Service Provider to law enforcement authorities.
8.1 The provision of the Service may require the Service Provider to Process Personal Information for and on behalf of the Customer and the Users. In respect of such Processing, the parties acknowledge and agree that:
8.1.1 the Customer shall be the Data Controller and the Service Provider shall be the Data Processor;
8.1.2 the Customer shall be solely responsible for determining the purpose(s) for which and the manner in which the Personal Information will be Processed by the Service Provider; and
8.1.3 Clauses 8.2 to 8.8 below shall apply.
8.2 The Customer shall:
8.2.1 comply with all Data Privacy Laws;
8.2.2 obtain and maintain all relevant registrations (and similar) required by Data Privacy Laws;
8.2.3 ensure that all instructions that it issues to the Service Provider comply with Data Privacy Laws; and
8.2.4 ensure that the Users and relevant third parties have been informed of the Processing of Personal Information by the Service Provider.
8.3 When Processing Personal Information as part of the delivery of the Service, the Service Provider shall:
8.3.1 Process the Personal Information only on the documented instructions of the Customer, except to the extent that any Processing of Personal Information is required by applicable Laws;
8.3.2 where Processing of Personal Information by the Service Provider is required by applicable Laws, the Service Provider shall inform the Customer of the relevant legal requirement before processing, unless such law prohibits the Service Provider from doing so;
8.3.3 notify the Customer where the Service Provider reasonably believes any documented instructions from the Customer in respect of the Processing of Personal Information infringe any Data Privacy Laws or any other applicable Laws;
8.3.4 ensure that its personnel who are authorised to Process the Personal Information have committed themselves to confidentiality;
8.3.5 implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing;
8.3.6 only appoint a third party to Process Personal Information on its behalf in accordance with clauses 8.4 and 8.5 below;
8.3.7 taking into account the nature of the Processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject’s rights under Data Privacy Laws;
8.3.8 notify the Customer without undue delay after becoming aware of a Data Breach;
8.3.9 assist the Customer in its compliance with its obligations under Data Privacy Laws in respect of notifying Data Breaches to the ICO and affected Data Subjects, insofar as it is able taking into account the nature of the Processing and the information available to the Service Provider;
8.3.10 at the Customer’s discretion, delete or return to the Customer all of the Personal Information Processed under this Agreement on completion of the provision of the Service and delete any copies of such Personal Information unless any Laws require that copies are kept; and
8.3.11 make available to the Customer all information necessary to demonstrate compliance with its obligations in this clause 8.3.
8.4 The Service Provider shall not sub-contract its Processing of Personal Information to a third party without the Customer’s prior specific or general written authorisation (not to be unreasonably withheld, conditioned or delayed). Where any sub-contracting of Processing of Personal Information is based on the Customer’s general written authorisation, the Service Provider shall inform the Customer of any intended changes concerning the addition or replacement of any sub-contractors and the Customer shall notify the Service Provider of any objections it has to any such changes in writing within five (5) Business Days, after which any such changes which the Customer has not objected to in accordance with this clause 8.4 shall be deemed to be accepted.
8.5 Where the Service Provider sub-contracts its Processing of Personal Information to a third party in accordance with clause 8.4 above, the Service Provider shall:
8.5.1 ensure that any such third party is subject to the same data protection obligations as those set out in clause 8.3 above;
8.5.2 obtain sufficient guarantees from any such third party that they will implement appropriate technical and organisational measures in such a manner that the Processing of Personal Information by such third party will meet the requirements of Data Privacy Laws; and
8.5.3 remain liable to the Customer for any Processing of Personal Information by any such third party.
8.6 Each party shall co-operate with the ICO on the request of the other party in respect of the performance of its tasks under this Agreement.
8.7 The Service Provider shall not transfer Personal Information to any country outside the EEA without the prior written consent of the Customer, such consent may be subject to and given on such terms as the Customer may in its discretion prescribe (acting reasonably and in compliance with Data Privacy Laws).
8.8 In the event that the Customer consents to the transfer of Personal Information from the Service Provider to a country outside of the EEA under clause 8.7, the Service Provider shall confirm in writing details of how the Service Provider will ensure an adequate level of protection and adequate safeguards in respect of the Personal Information that will be processed in and/or transferred outside of the EEA so as to ensure compliance with the Data Privacy Laws.
9.1 The Service Provider warrants that the Service will be performed with reasonable skill and care.
9.2 The warranty at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Delio Solution contrary to the Service Provider’s instructions, or modification or alteration of the Delio Solution by any party other than the Service Provider. If the Services do not conform to the foregoing warranty, the Service Provider will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the warranty set out in clause 9.1. Notwithstanding the foregoing, the Service Provider:
9.2.1 is not 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 Delio Solution may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.3 This Agreement shall not prevent the Service Provider from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
10.1 The Customer shall:
10.1.1 provide the Service Provider with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be required by the Service Provider,
in order for the Service Provider to provide the Delio Solution, including Data, security access information and configuration services;
10.1.2 comply with all applicable Laws with respect to its activities under this Agreement and, in particular, shall at all times be appropriately authorised for any activity which is regulated by FSMA or any equivalent Law in any jurisdiction in which the Customer operates;
10.1.3 ensure that the Users Use the Delio Solution in accordance with the terms and conditions of this Agreement;
10.1.4 be responsible for any User’s breach of this Agreement;
10.1.5 ensure that its network and systems comply with the relevant specifications provided by the Service Provider from time to time; and
10.1.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer Systems to the Service Provider’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
11.1 The Customer shall pay the Subscription Fees without set-off or deduction prior to the access to the Delio Solution being enabled and the Service Provider will issue an invoice for the Subscription Fees. If the Customer provides credit or debit card information to the Service Provider, the Customer authorises the Service Provider to charge such credit or debit card for the Subscription Fees for the Initial Subscription Term and any renewal terms as described in clause 16.2.
11.2 All amounts and fees stated or referred to in this Agreement:
11.2.1 shall be payable in the currency specified in the Subscription Form;
11.2.2 are non-cancellable and non-refundable; and
11.2.3 are exclusive of any taxes, which shall be added at the appropriate rate (e.g. VAT).
11.3 In terms of periodic subscription payments, if the Service Provider has not received payment by the renewal date, and without limit to any other rights and remedies of the Service Provider:
11.3.1 the Service Provider may, without liability to the Customer, disable the Customer’s instances (and any User’s passwords), and access to all or part of the Delio Solution and the Service Provider shall be under no obligation to provide any or all of the Delio Solution while the amount concerned remain unpaid; and
11.3.2 the Service Provider may charge the Customer interest on the overdue amount (payable by the Customer immediately on demand) at the rate of 1.5 per cent per month, or the maximum rate permitted by relevant Laws, whichever is lower. Such interest shall accrue on a daily basis from the renewal date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11.4 The Subscription Fees which apply to any extension following the Initial Subscription Term shall be equal to Subscription Fees that applied during the immediately prior term unless the Service Provider has given the Customer written notice of a pricing increase at least two months before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter, and the Subscription Form shall be deemed to have been amended accordingly.
11.5 The Customer will pay all costs (at the Service Provider’s then prevailing rates) and expenses incurred by the Service Provider for work carried out by the Service Provider in connection with any fault which is not covered by this Agreement.
11.6 On termination or expiry of this Agreement for any reason, the Customer will immediately pay any outstanding unpaid amounts and interest due to the Service Provider. The Service Provider will submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer will pay these invoices immediately on receipt.
12.1 The Customer acknowledges that all Intellectual Property Rights in the Delio Solution anywhere in the world belong to the Service Provider or its relevant licensors, that rights in the Delio Solution are licensed (not sold) to the Customer, and that the Customer has no rights in, or to, the Delio Solution other than the right to use the Delio Solution in accordance with the terms of this Agreement. This Agreement does not grant the Users any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of the Delio Solution.
12.2 The Customer acknowledges that the Customer has no right to have access to the Service in source-code form.
12.3 The integrity of the Delio Solution may be protected by digital rights management (“DRM”) so that the Intellectual Property Rights, including copyright, in the Delio Solution are not misappropriated. The Customer must not attempt in any way to remove or circumvent any such DRM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in its possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such DRM.
12.4 The Service Provider does not acquire any Intellectual Property Rights in respect of User Content.
13.1 The Customer shall defend, indemnify and hold harmless the Service Provider against all Losses arising out of or in connection with the Customer’s and the Users’ Use of the Delio Solution, including any failure to comply with Clause 10.1.
13.2 In relation to any claim which gives rise or may give rise to any Loss in respect of which the Customer shall indemnify the Service Provider under clause 13.1:
13.2.1 the Service Provider shall give the Customer prompt notice of any such claim;
13.2.2 the Service Provider shall provide reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
13.2.3 the Customer shall be given sole authority to defend or settle the claim.
14.1 Subject to clauses 14.2 and 14.3, the Service Provider will defend any claim against the Customer and pay the damages and costs finally awarded against the Customer by a court of competent jurisdiction to the extent the Delio Solution is held to infringe any Intellectual Property Rights of any third party in England and Wales.
14.2 The Customer shall:
14.2.1 without delay (but no later than 10 days from the date the Customer became aware of such claim) provide written notification to the Service Provider of the claim;
14.2.2 allow the Service Provider to conduct the defence to the action or claim and all negotiations for settlement relating to the action or claim;
14.2.3 not make any admission or take any other action which may be prejudicial to the defence of the action or claim or which may adversely affect the Service Provider’s ability to negotiate a satisfactory settlement to the action or claim; and
14.2.4 at the request and expense of the Service Provider, provide all reasonable assistance in defending the action or claim.
14.3 The Service Provider will not be liable to the Customer if an infringement claim is based on:
14.3.1 use of the Delio Solution in combination with components of any third party IT environment or Customer Systems;
14.3.2 modification of the Delio Solution by anyone other than the Service Provider;
14.3.3 use of the Delio Solution where a non-infringing version or release of the Delio Solution was offered by the Service Provider which would have avoided the claim of infringement;
14.3.4 aspects of the Delio Solution which were based on information, direction or specifications provided by the Customer; or
14.3.5 use of the Delio Solution by the Users in breach of any terms of this Agreement.
15.1 The Customer and the Service Provider each agree to keep confidential and not to disclose to any third party (other than to the Permitted Recipients, under equivalent obligations of confidentiality) any information relating to the other’s past, present and future research, development, business activities, products, services and technical knowledge, disclosed in connection with the Delio Solution and which is identified by the disclosing party as confidential information or which a reasonable person would deem to be confidential under the circumstances (“Confidential Information”).
15.2 The Customer and the Service Provider each agrees:
15.2.1 not to make use of any Confidential Information of the other party for any purpose other than:
(a) using the Delio Solution in accordance with this Agreement; or
(b) as required by relevant Laws;
15.2.2 not to copy or reproduce any Confidential Information without the disclosing party’s prior written consent except as reasonably needed to perform its obligations under this Agreement. The receiving party agrees to protect the Confidential Information of the disclosing party in the same manner that it protects its own similar Confidential Information, but in no event using less than a reasonable standard of care.
15.3 The obligations of confidentiality and non-use set out in this clause 15 shall not apply to any Confidential Information where the receiving party can demonstrate that the Confidential Information concerned:
15.3.1 is or becomes publicly known through no breach of this clause 15;
15.3.2 is lawfully received from an independent third party which was not, to the receiving party’s knowledge, under an obligation not to disclose such information;
15.3.3 is already known to the receiving party with no obligation of confidentiality at the date it was disclosed by or obtained from the disclosing party;
15.3.4 is disclosed without restriction by the disclosing party to any third party; or
15.3.5 is independently developed by or for it without use of the Confidential Information.
shall continue until the Subscription has expired unless terminated earlier as provided in this clause 16.
16.2 The Subscription will automatically renew for additional periods equal to 12 months unless either party gives the other notice of non-renewal at least one month before the expiry of the relevant term.
16.3 Notwithstanding any other provision of this Agreement, and without limiting any other rights that the parties may have, either party may immediately terminate this Agreement by written notice to the other if:
16.3.1 the other party commits a material breach of its obligations under this Agreement and fails to remedy such breach (if capable of remedy) within 14 Business Days of having received written notice of breach; or
16.3.2 the other party enters into administration (whether out of court or otherwise), receivership, liquidation, a formal arrangement with its creditors or any analogous proceedings or procedure, or is otherwise insolvent or ceases or threatens to cease to trade.
16.4 On termination of this Agreement for any reason:
16.4.1 all licences granted under this Agreement shall immediately terminate;
16.4.2 each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
16.4.3 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and
16.4.4 the Service Provider may destroy or otherwise dispose of any of the User Content in its possession after 30 days of termination or expiry of this Agreement.
17.1 The Service Provider does not warrant that use of the Delio Solution by the Customer, or any Users will be uninterrupted or error-free.
17.2 The Customer acknowledges that the Delio Solution has not been developed to meet its (or the Users) individual requirements, and that it is therefore its responsibility to ensure that the facilities and functions of the Delio Solution meet its requirements.
17.3 The Customer acknowledges that the Service may not be free of bugs and agrees that the existence of minor errors will not constitute a breach of this Agreement.
17.4 The Service Provider shall not under any circumstances whatsoever be liable to the Customer, or the Users whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
17.4.1 loss of profits, sales, business, or revenue;
17.4.2 business interruption;
17.4.3 loss of anticipated savings;
17.4.4 loss or corruption of data or information;
17.4.5 loss of business opportunity, goodwill or reputation; or
17.4.6 any incidental, indirect or consequential, special or punitive loss or damage.
17.5 Other than the losses set out in clause 17.4 (for which the Service Provider is not liable), the Service Provider’s maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to 100 per cent of the Subscription Fees paid by the Customer in the year which the liability arises.
17.6 Nothing in this Agreement excludes the liability of the Service Provider for:
17.6.1 death or personal injury caused by the other party’s negligence; or
17.6.2 fraud or fraudulent misrepresentation; or
17.6.3 any other obligation implied by law which cannot lawfully be excluded or limited.
17.7 This Agreement sets out the full extent of the Service Provider’s obligations and liabilities in respect of the supply of the Delio Solution and the Services. Except as expressly stated in this Agreement, there are no clauses, conditions, warranties, representations or other terms, express or implied, that are binding on the Service Provider. Any clause, condition, warranty, representation or other term concerning the supply of the Delio Solution and the Services which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by Law.
17.8 The Service Provider utilises third party suppliers for a number of aspects of the Services and Delio Solution, including hosting, and notwithstanding the other provisions of this Clause 17, where:
17.8.1 the Service Provider is in breach of its obligations under this Agreement;
17.8.2 such breach is due to the action or omission of a third party supplier; and
17.8.3 the Customer suffers a Loss as a direct result of any such breach,
the Service Provider shall use reasonable endeavours to recover such Losses from the relevant third party supplier in accordance with the terms of the relevant third party agreement.
17.9 Where the Service Provider recovers Losses from a third party supplier in accordance with clause 17.8, following receipt of any relevant amounts from the third party supplier, the Service Provider shall pass-through such amounts to the Customer provided that where the Service Provider recovers Losses from the third party which relate to losses of the Service Provider and its other customers, as well as Losses of the Customer the Service Provider shall pass on that proportion of the Losses recovered which relates to the Customer’s Losses in proportion to the overall Losses.
18.1 Neither party may assign or otherwise transfer any benefit or obligation arising under this Agreement without the prior written consent of the other party.
18.2 Notwithstanding clause 18.1, the Service Provider may:
18.2.1 assign or transfer this Agreement or any or all of its rights and/or obligations under it to any company in its Group; and
18.2.2 sub-contract the performance of any or all of its rights and/or obligations under this Agreement.
The Service Provider shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Service Provider or any other party), failure of a utility service or transport, failures or fluctuations in electrical power or telecommunications service, telecommunications network or other equipment, expropriation, condemnation of facilities or destruction, in whole or part, of the equipment or property necessary to perform the Services, internet service provider failure or delay, act of God, war, riot, civil commotion, malicious damage, compliance with any Laws or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of service providers or sub-contractors.
20.1 Any notice given under or in relation to this Agreement will be in writing and signed by or on behalf of the party giving it and may be served by:
20.1.1 delivering it personally or by sending it by post or tracked delivery;
20.1.2 email or facsimile transmission,
to the address and for the attention of the relevant party as notified by that party during the term of this Agreement.
20.2 Any such notice will be deemed to have been received:
20.2.1 if delivered personally, at the time of delivery;
20.2.2 in the case of post or tracked delivery, 72 hours from the date of posting;
20.2.3 in the case of facsimile 24 hours after the time of transmission provided an error-free transmission has been received by the sender; and
20.2.4 in the case of email at the time the email enters the Designated Information System of the intended recipient provided that no error message indicating failure to deliver has been received by the sender.
21.1 All advertising, press releases, public announcements and public disclosures by either party relating to this Agreement which includes:
21.1.1 the other party’s name, trade names, trade marks, logos, service marks or trade dress (collectively, “Name“); or
21.1.2 language from which the connection of such Name may be inferred or implied, will be coordinated with and subject to approval by both parties prior to release, such approval not to be unreasonably withheld, provided, however, that:
(a) either party may indicate to third parties that the Service Provider is providing services to the Customer; and
(b) the Service Provider may use the Customer as a reference.
22.1 If any dispute arises in connection with this Agreement, a representative of each party with authority to settle the dispute will, within 14 days of a written request from one party to the other, meet (either physically or remotely) in good faith in an effort to resolve the dispute. If the dispute is not resolved at that meeting, either party may commence legal proceedings.
22.2 Nothing in clause 22 shall prevent either party from seeking urgent injunctive relief.
23.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
23.2 Each party agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
24.1 A person who is not a party to this Agreement, including Users, (a “third party“) shall have no rights to enforce any term of this Agreement.
24.2 A party can only waive a right or remedy provided in this Agreement or by law by express written notice. No delay by either party in enforcing its rights will limit or restrict the rights of that party and any single or partial exercise or waiver of any power, right or remedy will not preclude its further exercise or the exercise of any other power, right or remedy.
24.3 No variation of this Agreement (except for any pricing adjustments which have been applied in accordance with clause 11.4) will be valid unless recorded in writing and signed by or on behalf of each of the parties to this Agreement.
24.4 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain unaffected and in force.
24.5 Each party undertakes at the request of the other and at the cost of the other to do all acts and execute all documents which may be necessary to give effect to the meaning of this Agreement.
24.6 Each party shall pay its own costs and expenses (including legal fees) in relation to the preparation and execution of this Agreement.
24.7 This Agreement (and any documents referred to in it) contains the whole agreement between the parties in respect of its subject matter and supersedes any prior written or oral agreement between them and, except as required by statute, no terms will be implied (whether by custom, usage, course of dealing or otherwise) into this Agreement.
24.8 The parties confirm that they have not entered into this Agreement on the basis of any representations that are not expressly incorporated in this Agreement. In connection with the subject matter of this Agreement, each party waives all rights and remedies (including any right or remedy based on negligence) which might otherwise be available to it in respect of any express or implied representation, assurance, undertaking, collateral agreement, warranty or covenant which is not set out in this Agreement.
24.9 Nothing in this Agreement will operate to limit or exclude any liability for fraud.
24.10 Nothing in this Agreement will be construed as constituting or evidencing any partnership, contract of employment or joint venture of any kind between either of the parties or as authorising either party to act as agent for the other. Neither party will have authority to make representations for, act in the name of or on behalf of or otherwise to bind the other party in any way.
24.11 Except as expressly provided, no terms and conditions, standard or otherwise, contained on any invoice, order form, licence or other document of the Customer shall apply to the subject matter unless incorporated as a variation agreed in writing between the parties and signed by the relevant representatives of each party.
24.12 From time to time the Service Provider may use a third party for the transmission of communications to the Customer and Users in which case, notwithstanding anything to the contrary in this Agreement, such transmission of communications shall be subject to the terms and conditions of the relevant third party providing such services.
24.13 This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will together constitute a single Agreement.
Service Provider
DELIO LTD (incorporated and registered in England and Wales under company registration number 09092423), the registered office of which is at Cardiff Business Technology Centre, Senghennydd Road, Cardiff, Wales, CF24 4AY.
Customer
Firm Name
Registered Address
Registered Office
<To be populated based upon the information entered in the KYC process>
This subscription form is entered into under the Service Agreement between the Service Provider and the Customer (“Framework Subscription Agreement“)
Subscription Details
Initial Subscription Term
Twelve Months
Subscription Fees
10,000
Optional Services
Any Optional Services that are required bespoke to the Customer will be charged on a day rate or quoted in advance based upon an estimate. Optional Services will be quoted separately but will be based upon the following fee schedule:
| Type | Rate per Day |
| Project Manager | 750 |
| Senior Developer | 750 |
| Junior Developer | 525 |
| Tester | 525 |
Currency of Fees
GBP
Billing frequency
Annual
Due date for payment
The Customer shall pay the Subscription Fees without set-off or deduction prior to the access to the Delio Solution being enabled. Renewal fees will be charged in the month preceding the renewal date.
