Terms and conditions
1 – Interpretation
1.1 – The following definitions shall apply to this contract:
Affiliates: means, in relation to either party, each and any subsidiary or holding company of that party with the term’s ‘subsidiary’ and “hold company” being given their meaning as set out in sections 1159 of the Companies Act 2006.
Aggregated Data: has the meaning given in Clause 9.6.
Authorised Users: those users authorised by the customer in accordance with the Documentation to access and use the Platform Services and the Document pursuant to the Customer’s purchase of User Subscriptions under this contract.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: The Subscription Fees, the Set Up Fees and any other fees agreed between the Parties from time to time.
Commencement Date: has the meaning given to it in the Order Form. The start of live service.
Contract: The Platform Terms and the order Form.
Customer: has the meaning given to it in the Order Form.
Customer Data: the data, including any Personal Data provided by the Customer, the Client or Authorised Users or otherwise collected by Startingpoint on the customers behalf for the purpose of using the Platform Services or facilitating the customers use of the Platform Services. For the avoidance of doubt, Customer Data shall include any location data sent from the Clients mobile phone or other mobile devices.
Data Protection Laws: all applicable data protection laws and regulations in any jurisdiction, including the General Data Protection Regulation 2018, EU Data Protection Directive (Directive 95/46/E), the Data Protection Act 1998, the Electronic Communications Data Protection Act 1998, the Electronic Communications Data Protection Directive 20002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), and amended and in force from time to time.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, right in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights and all similar or equivalent rights or forms of protection in any part of the world, in each case whether registered or unregistered and including all application for and renewals or extensions of such rights.
Normal Business Hours: 8:00am to 5:30pm local UK time, each Business Day.
Order Form: has the meaning given to it Clause 2.1.
Parties: Startingpoint and the customer.
Platform Services: the platform subscription services provided by Startingpoint to the customer as identified in the Order Form and described in the Documentation.
Platform Services Support Policy: Startingpoint policy for providing support in relation to the Platform Services as may be notified to the Customer from time to time.
Platform Terms: these terms and conditions and attached to the Order Form.
Renewal Period: an extension to the Initial Term either: (i) pursuant to the Order Form and Clause 3.2; or (ii) as may otherwise be agreed by the Parties in writing.
Reports: reports analysing and/or displaying any of the data generated during the provision of the Platform Services.
Software: the online software applications provided by Startingpoint by part of the platform.
Startingpoint: My SP LTD incorporated an registered in England and Wales with company number 13387508, whose registered office is: The Edge Hub, Myton Street, Hull, HU1 2PS.
Subscription Fees: the subscription fees playable by the Customer to Startingpoint for the User subscriptions, as set out in the Order Form.
Term: the period in which the Platform Services are provided to the Customer.
Third-Party Additional Terms: the additional terms and conditions set out in schedule 1 relating to the Third-Party.
Third-Party Software: the third party and conditions set out in schedule 1.
User Subscriptions: the type and (where stated) the number of user subscriptions purchased by the customer pursuant to this contract and set out in the Order Form which entitle Authorised Users to access and use the Platform Services and the Documentation in accordance with this Contract.
Virus: anything or device (including any software, code, file, or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the users experience, including worms, trojan horses, virus and other similar things or devices.
Documentation: the documentation relating to the Platform as may be made available to the Customer by Startingpoint from time to time.
Employee Checks: checks may be made without limitations against all employees of Startingpoint for identity, qualifications, references, criminal record, permission to work (i.e. for foreign nationals), for list 99 and any similar checks which may be required by the relevant local education authority, the Department for Education, any other relevant authority, and the relevant school at which the client is placed from time to time.
Initial Term: the initial term of this contract as set out in the Order Form.
1.2 – Clause heading shall not affect the interpretation of this contract.
1.3 – Unless the context otherwise requires:
1.3.1 – Words in the singular shall include the plural and in this plural shall include in the singular.
1.3.2 – Any reference to any statute, enactment, order, regulation, or other similar instrument will be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-re-enactment thereof.
1.3.3 – A reference to one gender shall include a reference to the other genders; and any words following the terms including, include for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description. Definition, phrase to term preceding those terms.
1.4 – In the case of conflict or ambiguity, the order of precedence
for this contract will be as follows:
1.4.1 – The order form.
1.4.2 – The main body of the Platform Terms.
1.4.3 – The Schedules to the Platform Terms.
1.4.4 – The documents attached to this Contract.
1.4.5 – The documents referred to in this contract.
1.5 – A person includes a natural person, corporate or unincorporated body (whether having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.6 – References to clauses are to the clauses of these Platform Terms, references to Paragraphs of the Schedules to these Platform Terms and References to Sections are to sections of the Order Form.
2 – Structure
2.1 – These Platform Terms form part of, are made pursuant to and are governed by the Order Form entered into by Startingpoint and the Customer identified in that Order Form as attached to these Platform Terms (‘Order Form’).
2.2 – This Contract shall commence on the date set out in the Order Form and, subject to Clause 14, shall terminate in accordance with the Order Form.
3 – Term
3.1 – This contract commences on the Commencement Date and, subject to earlier termination in accordance with Clause 14, this Contract will continue for a minimum term of the contract.
3.2 – The initial term of this Contract will, subject to earlier Termination in accordance with Clause 14, continue for successive 12-month periods until terminated by either Party giving not less than 3 months written notice of termination to the other, such termination to take effect only on the first or any subsequent anniversary, of the initial term.
4 – Services
4.1 – Startingpoint shall during the Term, provide the Platform Services to the customer on and subject to the term of this contract.
4.2 – Startingpoint shall use commercially reasonable endeavours to make the Platform Services available 24 hours a day, 7 days a week. Except for:
4.2.1 – Planned maintenance carried out during the maintenance window of 5:30pm to 8:00am UK time: and
4.2.2 – Unscheduled maintenance performed outside Normal Business Hours, provided that Startingpoint has used reasonable endeavours to give the Customer at least 2 hours notice in advance.
4.3 – Startingpoint will, as part of the Platform Services and at no additional cost to the Customer, provide the Customer with Startingpoint standard customer support services during Normal Business Hours in accordance with Startingpoint’s platform Service Support Policy in effect at the time that the Platform Services are provided. Startingpoint may amend the Platform Services Support. Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Startingpoint than current rates.
5 – User Subscriptions
5.1 – Subject to the Customer purchasing the User Subscriptions in accordance with Clause 6.3 and Clause 12, the restrictions set out in the Clause 5 and the other terms and conditions of this Contract. Startingpoint hereby grants to the Customer a limited non-exclusive, non-transferable, revocable right to permit the Authorised Users to use the Platform Services and the Documentation during the Term.
5.2 – In relation to the Authorised Users, the customers undertake
that:
5.2.1 – It shall only authorise users to access and use the Platform Services and the Documentation (i) in accordance with the Documentation; and (ii) who fall within the type(s) of User Subscription that have been purchased by the Customer.
5.2.2 – The maximum number of Authorised Users that it authorises to access and use the Platform Services and the Documentation
shall not exceed the number of User Subscriptions it has purchased from time to time.
5.2.3 – It will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Platform Services and/or Documentation.
5.3 – The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property. Startingpoint reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer access to any material that breaches the provisions of this Clause.
5.4 – The Customer shall not:
5.4.1 – Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Contract attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
5.4.2 – Access all or any part of the Platform Services and Documentation in order to build a product or service which competes with the Platform Services and/or the Documentation: or
5.4.3 – Use the Platform Services and/or Documentation to provide services to third parties; or
5.4.4 – License, sell, rent, lease, transfer assign, distribute, display,disclose, or otherwise commercially exploit, or otherwise make the Platform Services and/or Documentation available to any third party except the Authorised Users, or
5.4.5 – Attempt to obtain, or assist third parties in obtaining, access to the Platform Services and/or Documentation, other than as provided under this Clause 5.
5.5 – The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Startingpoint.
5.6 – The rights provided under this Clause 5 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the customer.
5.7 – The customer shall ensure that the Authorised Users use the Platform Services and the Documentation in accordance with this Contract. The Customer shall be responsible for any Authorised User’s breach of the aforementioned terms.
6. Additional User Subscriptions
6.1 – Subject to Clause 6.2 and Clause 6.3, the Customer may, from time to time purchase additional User subscriptions and Startingpoint shall grant access to the Platform Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Contract.
6.2 – If the customer wishes to purchase additional User Subscriptions, the Customer shall notify Startingpoint in writing, Startingpoint shall evaluate such request for additional User Subscriptions and respond to the customer with approval or rejection of the request.
7. Limits of Liability
7.1 – Nothing in this Contract will exclude, limit or restrict either Party liability for:
7.1.1 – Death or personal injury caused by its negligence, or that of it partners, officers, employees, contractors, or agents.
7.1.2 – Fraud or fraudulent misrepresentation.
7.1.3 – Breach of Clause 8.
7.1.4 – Breach of the obligations implied by section 12 of Sale of Goods Act 1979 or section 2 of the Supply of Goods and services Act 1982: or
7.1.5 – Any other liability which may not be excluded by law.
7.2 – Subject to clause 7.1, Startingpoint shall not be Liable to the Customer for any of the following loss or damage, in each case arising out of or connection with this Contract (including without limitation as a result of breach of contract, negligence or any other tort, under statute or otherwise), and regardless of whether Startingpoint knew or had reason to know of the possibility of the loss, injury or damage in question:
7.2.1 – Any loss (whether direct or indirect) of revenue or profits;
7.2.2 – Any loss (whether direct or indirect) of anticipated savings;
7.2.3 – Any loss (whether direct or indirect) of goodwill or injury to reputation;
7.2.4 – Any loss (whether direct or indirect) of business opportunity;
7.2.5 – Any loss (whether direct or indirect) of or corruption to data; or
7.2.6 – Indirect or consequential loss or damage
7.3 – Subject to Clauses 7.1 and 7.2, the aggregate liability of Startingpoint (including its respective partners, officers, employees, contractors, directors, sub-contractors, and agents). Under this Contract whether in contract, tort (including negligence) or otherwise will not exceed in relation to all events occurring in a given Year, the equivalent of one hundred percent (100%) of the aggregate sums paid, due or which would have been payable to Startingpoint under this contract in the Year in which the cause of action arose.
7.4 – Subject to clause 7.1, the customer agrees that, in entering into this Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Contract or (if it did rely on any representations, whether written or oral, not expressly set out in this Contract), that it shall have no remedy in respect of such representations and (in either case) Startingpoint shall have no liability in any circumstances otherwise than inaccordance with the express terms of this Contract.
7.5 – The Customer shall be liable for and shall indemnify Startingpoint against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by Startingpoint which arise directly or indirectly out of or in connection with any Authorised Users access to or use of the Platform Services and/or Documentation other than as expressly permitted by this Contract.
8. Customer Data
8.1 – In this Clause 8, the terms ‘data controller’, ‘data processor’, ‘data subject’, personal data’ and ‘processing’ have their respective meanings given to them in the Data Protection Act 1998 and the General Data Protection Regulation 2018.
8.2 – The customer shall own all right, title and interest in and to all of the Customers Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
8.3 – The Parties agree to comply with the Data Protection Laws.
8.4 – The Parties agree that the Customer shall be the data controller and that Startingpoint will be acting as a data processor in respect of that Customer Data and Startingpoint will only use the Customer Data in accordance with the terms of this Contract and the instructions of the Customers acting as the data controller.
8.5 – In relation to the Customer Data: (i) the customer acknowledges and agrees (and shall procure that each agrees) that the Customer Data may be transferred or stored outside the EEA in order to provide the Platform Services and to carry out Startingpoint’s other obligations under this Contract; (ii) the customers agrees that it will be responsible for providing the requisite fair processing notices and obtaining the required consents (and updating as required) from the Clients in relation to the Customer Data, including any location data collected from the Clients’ mobile phones or other mobile device, and its transfer the relevant the Customer Data to Startingpoint so that Startingpoint and its subcontractors may lawfully use, process and transfer the personal data in accordance with this Contract.
8.6 – The Customer grants (and shall procure that its Clients, if any grant) to Startingpoint, its Affiliates and sub-contractors a non-executive royalty-free license to use, store and modify the Customers Data to the extent necessary to carry out its obligations under this Contract and to create Reports using the Aggregated Data and which may be provided to the Customer from time to time and subject to the Parties agreeing upon charges for such Reports.
8.7 – The Customer Data shall not be regarded as Confidential Information. Startingpoint shall be permitted to retain and use the Customer Data in an aggregated format provided that such aggerated data will not allow for reidentification of any Client (‘Aggregated Data’). The Customer agrees that the Aggregated Data may be retained indefinitely by Startingpoint for the purpose of improving its service and Startingpoint may share this Aggregated Data with third parties. For avoidance of doubt, Startingpoint shall own the Intellectual Property Rights in the Reports created using the Aggregated Data.
8.8 – The Parties agree to have in place appropriate technical and organisational security measures so that the Customer Data is protected against unauthorised or unlawful processing and against accidental loss, destruction, or damage. This includes taking reasonable steps to includes taking reasonable steps to ensure the reliability of its employees with access to the Customer Data.
8.9 – The Parties will immediately notify the other of any request for disclosure of Customer Data by a law enforcement authority or other government body and any complaint it receives in relation to the Customer Data.
8.10 – The Customer will be responsible to responding to any data subjects in relation to access to their personal data contained in the Customer Data. Startingpoint agrees to notify the Customer within 2 Business Days if it receives a request from a data subject in relation to access to their personal data and to provide reasonable assistance to the customer in responding to the same.
8.11 – The customer agrees to indemnify Startingpoint and keep Startingpoint fully and effectively indemnified on demand in respect of any type of liability, loss, damage, claims, actions, charges, costs (including legal fees) and expenses incurred by Startingpoint in connection with any breach of this Clause 8.
8.12 – In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Startingpoint to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Startingpoint in accordance with the archiving procedure described in its back-up policy.
8.13 – The Customer acknowledges that it should not rely on the Platform Services to store the Customer Data and the Customer should separately backup the Customer Data.
9. Startingpoint Obligations
9.1 – Startingpoint undertakes that the Platform Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
9.2 – The undertaking at Clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform Services contrary to Startingpoint’ instructions, or modification or alteration of the Platform Services by any party other than Startingpoint or Startingpoint duly authorised contractors or agents. If Platforms Services do not conform with the foregoing undertaking, Startingpoint will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customers sole and exclusive remedy for any breach of the undertaking set out in Clause 9.1 Notwithstanding the foregoing, Startingpoint:
9.2.1 – Does not warrant that the Customers use of the Platform Services will be uninterrupted or error-free; or that the Platform Services, Documentation and/or the information obtained by the Customer through the Platform Services will meet the Customers’s requirements; and
9.2.2 – Is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications network and facilitates, including the internet and the Customer acknowledges that the Platform Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.3 – Except as expressly set out in this Contract, Startingpoint expressly disclaims and excludes all representatives or warranties of any kind, whether express or implied, to the maximum extent permitted by applicable law in relation to any aspect of the Platform Services, including without limitation, those concerning satisfactory quality or fitness for purpose. The Platform Services are provided on an ‘as is’ and ‘as available’ basis.
9.4- This Contract shall not prevent Startingpoint 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 contract.
9.5 – Startingpoint warrants that it has and will maintain all necessary for the performance of its obligation under this Contract.
10 – Customer Obligations
10.1 – The Customer shall:
10.1.1 – Provide Startingpoint with (i) all necessary co-operation in relation to this Contract (ii) all necessary access to such information has may be required by Startingpoint; in order to provide the Platform Services, including but not limited to Customer Data, security access information and configuration services: and (iii) the ability to connect remotely to the Customers desktop computers if required for the purposes of investigating a support issue;
10.1.2 – Comply with all applicable laws and regulations with respect to its activities under this Contract;
10.1.3 – Carry out all other Customer responsibilities set out in this Contract in a timely and efficient manner. In the event of any delays in the Customers provision of such assistance as agreed by the Parties. Startingpoint may adjust any agreed timetable or delivery schedule as reasonably necessary.
10.1.4 – Ensure that the Authorised User use the Platform Services and the Documentation in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User’s breach of this contract.
10.1.5 – Obtain and shall maintain all necessary licenses, consents and permissions necessary for Startingpoint, its contractors and agents to perform their obligations under this Contract, including without limitation the Platform Services (other than the Third-Party Software).
10.1.6 – Promptly notify Startingpoint of any breach of the security of the Software and/or the Platform Services, howsoever caused, including but not limited to attacks from viruses, denial of service attacks and the like.
10.1.7 – Ensure that its and each Authorised Users network, software, hardware and systems comply with the relevant specifications provided by Startingpoint from time to time. The customer acknowledges that non-compliance with this Clause may result in Authorised Users not being able to access or use the platform services.
10.1.8 – Be solely responsible for procuring and maintaining its network connections. Operating environment and telecommunications links from its system to Startingpoint’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customers network connections, operating environment or telecommunications links or caused by the internet ; and
10.1.9 – Remain responsible for the effective and efficient management, co-ordination and performance of all third party interfaces and agreements with which Startingpoint requires usage and contract with to enable it to provide the Platform Services (save for those provided as part of the Platform Services.
10.2 – Startingpoint shall not be liable to the Customer in relation to delayed completion or performance of any of its obligation under this Contract to the extent to which such delay or failure is the result of any act or omission of the Customer or any Authorised User.
11 – Charges and Payment
11.1 – The Customer shall pay the Subscriptions Fees in Startingpoint for the User Subscriptions, and the Completion Fees, in accordance with the Order Form.
11.2 – If, at any time whilst using the Platform Services, the Customer exceeds the amount of disk storage space specified in the Documentation, Startingpoint shall charge the Customer, and the Customer shall pay, Startingpoint then current excess data storage fees. Such fees must be agreed with customers.
11.3 – Startingpoint shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 6.3 and/or the excess storage fees payable pursuant to Clause 11.2 at the start of each Renewal Period upon 90 days’ prior notice to the Customer. The increase is no more than inflation or alternatively Startingpoint will meet annually with the customer to review and agree pricing.
12 – Proprietary Rights and Indemnity
12.1 – The Customer acknowledges and agrees that Startingpoint and/or its licensors own all of the rights (including the Intellectual Property Rights) in the Platform Services and the Documentation. Except as expressly stated herein, this Contract does not grant the Customer any rights (including the Intellectual Property Rights) in respect of the Platform Services or the Documentation.
12.2 – Startingpoint confirms that it has all the rights in relations to the Platform Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with the terms of this Contract.
12.3 – The Customer shall defend, indemnify, and hold harmless Startingpoint against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of any claim, demand, proceeding or allegations by a third party against Startingpoint in relation to the Customer’s and/or its Client’s use of the Platform services.
13 – Termination
13.1 – Without affecting any other right or remedy available to it, either Party may terminate this Contract with immediate effect by giving written notice to the other party if the other Party:
13.1.1 – Fails to pay any amount due under the Contract on th due date for payment and remains in default not less than 30days after being notified in writing to make such payment:
13.1.2 – Commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
13.1.3 – Is unable to pay its debts or becomes insolvent;
13.1.4- Is the subject of an order made or a resolution passed for the administration, winding-up or dissolution (other than for the purpose of a solvent amalgamation or reconstruction);
13.1.5 – Has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets; or
13.1.6 – Enters into or proposes any composition or arrangement with its creditors generally.
13.2 – Without affecting any other right or remedy available to it, Startingpoint may terminate this Contract with immediate effect by giving written notice to the Customers if there is a change of control of the Customer (withing the meaning of section 1124 of the Corporation Tax Act 2010).
13.3 – Termination or expiry of this Contract shall not affect any rights, remedies, obligations, or liabilities of Parties that have accrued up to the date of Termination or expiry, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.
13.4 – On termination of this Contract for any reason.
13.4.1 – All rights granted to the Customer under this Contract shall cease.
13.4.2 – Customer shall cease all activities authorised by this Contract;
13.4.3 – Customer shall immediately pay to Startingpoint any sums due to Startingpoint under this Contract;
13.4.4 – Each party shall return and make no further use of any equipment property, Documentation and other items (and all copies of them) belonging to the other Party;
13.4.5 – Each Party shall return and make no further use of any of the Customer Data in its possession unless Startingpoint receives, no later than ten days after the Commencement Date of the termination of this Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Startingpoint shall use reasonable back-up of the Customer Data. Startingpoint shall use reasonable commercial endeavours to deliver the back up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Startingpoint in returning or deposing od Customer Data; and
13.4.6 – Any rights, remedies, obligations, or liabilities of the parties that have accrued up to date of termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination shall not be affected or prejudiced.
13.5 – Any provision of this Contract which expressly or by implication is intended to come into or continue in force on or after termination of this Contract including 1,7.2,8,9,12, 13.3, 13.4, this clause 13.5, 14, 15.2, 15.16, 15.17 shall remain in full force and effect.
14 – Confidentiality
14.1 – Each party shall, during the term of this Contract and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Contract) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of commercial value) which may become known to such Party from the other Partyand which relates to the other Party, unless that information is public knowledge or already known to such Party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Contract, or subsequently comes lawfully into the possession of such Party from a third party . Each Party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information
15 – General
15.1 – Startingpoint may vary the terms of this Contract on 30 days written notice to the Customer. Upon the expiry of the aforementioned 30-day period the Customer shall be deemed to have accepted the variation proposed by Startingpoint unless the Customer has within that 30day period served written notice to terminate this Contract to Startingpoint (such termination notice to be effective on the expiry of a period of 180 days from the date of the termination notice).
15.2 – No failure or delay by a Party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.3 – Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and exclusive of any rights or remedies provided by law.
15.4 – Customer shall not without the prior written consent of Startingpoint (i) sub-license, assign or novate the benefit or burden of this Contract in whole or in part; or (ii) deal in any other manner with any or all of its rights and obligations under this Contract. Startingpoint may at any time sub-license, assign novate, charge or deal in any other manner with any or all of its rights and obligations under this Contract, provided it gives written notice to Customer.
15.5 – Notwithstanding Clause 14, a Party assigning any or all of its rights under this Contract may disclose to a proposed assignee any information in its possession that relates to this Contract or its subject matter, the negotiations relating to it and the other Party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 15.5 shall be made until notice of the identity of the proposed assignee has been given to the other Party.
15.6 – This Contract contains the whole agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the Parties relating to that subject matter.
15.7 – Each Party acknowledges that, in entering into this Contract, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Contract or not) (Representation) other than as expressly set out in this Contract. Each Party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this Clause shall limit or exclude any liability for fraud.
15.8 – If any provision or part-provision of this Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Contract.
15.9 – If any provision or part-provision of this Contract is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it Is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.10 This Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
15.11 – A person who is not a party to this Contract will have no right under the Contract (Right of Third Parties) Act 1999 to enforce any of its terms. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any person that is not a party to this Contract.
15.12 – Nothing in this contract is intended to, or shall be deemed to, establish any partnership or joint venture between any or the Parties, constitute any Party the agent of another party, or authorise any Party to make or enter into commitments for or on behalf of any other Party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.13 – Neither party shall be in breach of this Contract not liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
15.14 – Any notice given to a Party under or in connection with this Contract shall be in writing and shall be (a) delivered by hand) or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or principal place of business (in any case); or (b) sent by fax to its main fax number.
15.15 – Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service; or (c) if sent by fax, at 9.00am on the next Business Day after transmission. This Clause 15.15 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Clause, “writing” shall not include e-mail.
15.16 – This Contract and any dispute or claim arising out or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
15.17 – The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute orclaim that arises out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).