Software as a Service Subscription Agreement

Software as a Service Subscription Agreement relating to Qucate

Agreed Terms and Conditions

Interpretation
1. The definitions and rules of interpretation in this clause apply in this Agreement.
  1. "Agreement": means these terms and conditions together with the details set out in the Customers Order;
  2. "Authorised Users": those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
  3. "Back-Up Policy": means Koderly’s back up policy as amended from time to time and made available at https://qucate.com/legal/back-up-policy.
  4. "Business Day": a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
  5. "Change of Control": shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
  6. "Confidential Information": information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.1.
  7. "Customer": the person, company or firm who purchases the Services from Koderly.
  8. "Customer Data": the data inputted by the Customer, Authorised Users, or Koderly on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
  9. "Customer Email Address": the email address provided by the Customer when registering for the Services.
  10. "Customer Order": the order for the Services placed via https://qucate.com.
  11. " Data Protection Legislation ":
    - (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data;
    - (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Koderly is subject, which relates to the protection of personal data.
  12. "Documentation": the document made available to the Customer by Koderly online via Qucate or such other web address notified by Koderly to the Customer from time to time which sets out the user instructions for the Services.
  13. "Domestic Law": the law of the United Kingdom or a part of the United Kingdom.
  14. "Effective Date": the date of this Agreement or where a 30 day trial has been offered as part clause 9.1 the day after the end of such 30 day trial unless the 30 day trial is cancelled.
  15. "EU GDPR": the General Data Protection Regulation ((EU) 2016/679).
  16. "EU Law": the law of the European Union or any member state of the European Union.
  17. "Fair Use Policy": means Koderly’s policy for the fair usage of the Qucate product set out at https://qucate.com/legal/fair-usage-policy.
  18. "Heightened Cybersecurity Requirements": any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
  19. "Initial Number of Authorised Users": 1 (one) unless otherwise set out when registering for the Services.
  20. "Initial Subscription Term": the period from the Effective Date to the end of the calendar month in which the Effective Date falls.
  21. "Koderly": means Koderly Limited incorporated and registered in England and Wales with company number 04070605 whose registered office is at Windsor Works, Hall Street, Oldham, Lancashire, OL4 1TD.
  22. "Koderly Email Address": support@qucate.com
  23. "Normal Business Hours": 8.00 am to 6.00 pm local UK time, each Business Day.
  24. "Qucate": the online Qucate software application and test management platform provided by Koderly as part of the Services.
  25. "Renewal Period": one calendar month.
  26. "Representatives": in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
  27. "Services": the subscription services provided by Koderly to the Customer under this Agreement via https://qucate.com/legal/software-as-a-service-subscription-agreement or any other website notified to the Customer by Koderly from time to time.
  28. "Subscription Fees": £25 per Authorised User per month.
  29. "Subscription Term": has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
  30. "Support Services Policy": Koderly's policy for providing support in relation to the Services as made available at https://qucate.com/legal/support-services-policy or such other website address as may be notified to the Customer from time to time.
  31. "UK GDPR": has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
  32. "User Subscriptions": the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
  33. "Virus": any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
9. A reference to writing or written excludes fax but not email unless otherwise expressly stated.
10. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
Placing an order and its acceptance
1. Please follow the onscreen prompts to place a Customer Order. The Customer Order is an offer by the Customer to buy the Services subject to this Agreement.
2. Koderly’s order process allows the Customer to check and amend any errors before submitting the Customer Order. It is the Customers responsibility to check that the Customer Order is complete and accurate before confirming it.
3. After the Customer places the Customer Order, it will receive an email from Koderly acknowledging that Koderly has received it, but please note that this does not mean that the Customer Order has been accepted.
4. Koderly’s acceptance of the Customer Order takes place when the Customer completes their tenancy set up via the link sent by Koderly, at which point a contract between Koderly and the Customer will come into existence.
User Subscriptions
1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 4.3 and clause 9.1, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Koderly hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
2. In relation to the Authorised Users, the Customer undertakes that:
  1. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased (or registered under the 30 day trial as per clause 9.1) from time to time;
  2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User;
  3. each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised User shall keep their password confidential;
  4. it shall permit Koderly or Koderly's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Koderly's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
  5. if any of the audits referred to in clause 3.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Koderly's other rights, the Customer shall promptly disable such passwords and Koderly shall not issue any new passwords to any such individual; and
  6. if any of the audits referred to in clause 3.2.4 reveal that the Customer has underpaid Subscription Fees to Koderly, then without prejudice to Koderly's other rights, the Customer shall pay to Koderly an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  2. facilitates illegal activity;
  3. depicts sexually explicit images;
  4. promotes unlawful violence;
  5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  6. is otherwise illegal or causes damage or injury to any person or property;
  and Koderly reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
4. The Customer shall not:
  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 Agreement:
    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Qucate and/or Documentation (as applicable) in any form or media or by any means; or
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Qucate; or
  2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
  3. use the Services and/or Documentation to provide services to third parties; or
  4. subject to clause 17.11, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
  5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
  6. introduce or permit the introduction of, any Virus into Koderly's network and information systems.
5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Koderly.
6. The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Additional User Subscriptions
1. Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the Initial Number of Authorised Users and Koderly shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
2. If the Customer wishes to purchase or cancel additional User Subscriptions, the Customer may do so in the Administration section of Qucate.
3. If the Customer purchases additional User Subscriptions, the Customer shall pay to Koderly the Subscription Fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period such fees shall be pro-rated from the date of activation by Koderly for the remainder of the Initial Subscription Term or that Renewal Period (as the case may be) and paid in accordance with clause 9.
Services
1. Koderly shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
2. Koderly shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
  1. planned maintenance carried out during the maintenance window of 8.00 pm to 2.00 am UK time; and
  2. unscheduled maintenance performed outside Normal Business Hours, provided that Koderly has used reasonable endeavours to give the Customer at least 6 (six) Normal Business Hours' notice in advance.
3. Koderly will, as part of the Services and at no additional cost to the Customer, provide the Customer with Koderly's standard customer support services during Normal Business Hours in accordance with Koderly's Support Services Policy in effect at the time that the Services are provided. Koderly may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Koderly's then current rates.
Personal Data
1. The Customer acknowledges that the Services are provided on the condition that no personal data (as defined under the Data Protection Legislation) will be introduced into Qucate by the Customer.
2. The Customer agrees not to upload or introduce any personal data into Qucate and shall ensure that all Authorised Users do not do so. Notwithstanding this clause 6.2 if the Customer or any Authorised User does upload or introduce any personal data the Customer shall:
  1. notify Koderly immediately; and
  2. immediately remove such personal data from Qucate;
  3. indemnify and hold Koderly harmless against any damages, penalties, fines, or other losses of any nature whatsoever which it suffers arising out of or in connection with the uploading of personal data by the Customer and/or its Authorised Users in breach of this clause 6.2.
Koderly's Obligations
1. Koderly undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Koderly's instructions, or modification or alteration of the Services by any party other than Koderly or Koderly's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Koderly will, at its expense, use all reasonable commercial 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 undertaking set out in clause 7.1.
3. Koderly:
  1. does not warrant that:
    1. the Customer's use of the Services will be uninterrupted or error-free; or
    2. Qucate, the Documentation or the Services will comply with any Heightened Cybersecurity Requirements.
  2. 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. This Agreement shall not prevent Koderly 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.
5. Koderly warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6. Koderly shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy . In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Koderly shall be for Koderly to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Koderly in accordance with the archiving procedure described in its Back-Up Policy. Koderly shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Koderly to perform services related to Customer Data maintenance and back-up, for which it shall remain fully liable).
Customer's Obligations
1. The Customer shall:
  1. provide Koderly with:
    1. all necessary co-operation in relation to this Agreement; and
    2. all necessary access to such information as may be required by Koderly;
    in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
  2. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
  3. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
  4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
  5. not upload or store any data within Qucate in excess of the limits set out in the Fair Use Policy.
  6. obtain and shall maintain all necessary licences, consents, and permissions necessary for Koderly, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
  7. ensure that its network and systems comply with the relevant specifications provided by Koderly from time to time; and
  8. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Koderly'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.
2. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
Charges and Payment
1. This clause 9.1 shall apply where the Customer has entered into a 30 day trial. During such 30 day trial all terms and conditions set out in this Agreement shall apply save that:
  1. no Subscription Fees shall be payable for the duration of the trial;
  2. if the Customer has not provided valid up-to-date and complete payment card details, the Services shall cease to be available to the Customer at the end of the trial and this Agreement shall be deemed to be terminated pursuant to clause 14.1.2; and
  3. if the Customer has provided valid, up-to-date and complete payment card details and does not cancel the Services before the end of the 30 day trial, it shall be deemed to have automatically purchased such User Subscriptions as are in place at the end of the trial and all other provisions of this Agreement (including, for the avoidance of any doubt, the remainder of this clause 9) shall continue to apply.
2. The Customer shall pay the Subscription Fees to Koderly for the User Subscriptions in accordance with this clause 9.
3. The Customer shall provide to Koderly valid, up-to-date and complete payment card details and in doing so the Customer hereby authorises Koderly to debit the Subscription Fees:
  1. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term or (if the Customer enters into a 30 day trial) the first Renewal Period after the 30 day trial;
  2. at the beginning of each Renewal Period for the Subscription Fees payable in respect of that Renewal Period; and
  3. on the date on which each additional user subscription is purchased in accordance with clause 4.3.
4. If any payment is declined then, without prejudice to any other rights and remedies of Koderly:
  1. Koderly may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Koderly shall be under no obligation to provide any or all of the Services while the Subscription Fees concerned remain unpaid; and
  2. Interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4 (four) % over the then current base lending rate of Koderly's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5. All amounts and fees stated or referred to in this Agreement:
  1. shall be payable in pounds sterling;
  2. are, subject to clause 13.3.2, non-cancellable and non-refundable;
  3. are exclusive of value added tax, which shall be added to Koderly's invoice(s) at the appropriate rate.
6. Koderly shall be entitled to increase the Subscription Fees, no more frequently than once in any 12 month period and on 90 days' prior notice to the Customer the definition of Subscription Fees shall be deemed to have been amended accordingly.
Proprietary Rights
1. The Customer acknowledges and agrees that Koderly owns all intellectual property rights in the Services, the Documentation and the layout, ordering and structuring of any and all test reports and any other test outputs (“Report Layout”). Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Documentation or the Report Layout.
2. Koderly confirms that it has all the rights in relation to the 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 Agreement.
3. All intellectual property rights in any test data outputs, other than the Report Layouts, shall be owned by the Customer.
Confidentiality
1. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this Agreement in connection the Services, including but not limited to:
  1. the terms of this Agreement or any agreement entered into in connection with this Agreement;
  2. any information that would be regarded as confidential by a reasonable business person relating to:
    1. the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
    2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
  3. any information developed by the parties in the course of carrying out this Agreement and the parties agree that:
    1. details of the Services, and the results of any performance tests of the Services, shall constitute Koderly Confidential Information; and
    2. Customer Data shall constitute Customer Confidential Information;
2. The provisions of this clause shall not apply to any Confidential Information that:
  1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
  2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
  3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
  4. the parties agree in writing is not confidential or may be disclosed; or
  5. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
3. Each party shall keep the other party's Confidential Information secret and confidential and shall not:
  1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (“Permitted Purpose”); or
  2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
4. A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
  1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
  2. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
6. A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
7. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
8. On termination of this Agreement, each party shall:
  1. destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
  2. erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
  3. certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority or, in the case of Koderly only, its Back Up Policy. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14 (Termination).
9. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10. Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
11. The above provisions of this clause 11 shall survive for a period of 2 (two) years from termination or expiry of this Agreement.
Indemnity
1. The Customer shall defend, indemnify and hold harmless Koderly against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
  1. the Customer is given prompt notice of any such claim;
  2. Koderly provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
  3. the Customer is given sole authority to defend or settle the claim.
2. Koderly shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
  1. Koderly is given prompt notice of any such claim;
  2. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Koderly in the defence and settlement of such claim, at Koderly's expense; and
  3. Koderly is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Koderly may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 (two) Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
4. In no event shall Koderly, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  1. a modification of the Services or Documentation by anyone other than Koderly; or
  2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Koderly; or
  3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Koderly or any appropriate authority.
5. The foregoing and clause 13.3.2 states the Customer's sole and exclusive rights and remedies, and Koderly's (including Koderly's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of Liability
1. Except as expressly and specifically provided in this Agreement:
  1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Koderly shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Koderly by the Customer in connection with the Services, or any actions taken by Koderly at the Customer's direction;
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
  3. the Services and the Documentation are provided to the Customer on an "as is" basis.
2. Nothing in this Agreement excludes the liability of Koderly:
  1. for death or personal injury caused by Koderly's negligence; or
  2. for fraud or fraudulent misrepresentation.
3. Subject to clause 13.1 and clause 13.2:
  1. Koderly shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
  2. Koderly's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
4. Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Koderly’s Intellectual Property Rights.
Term and Termination
1. This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the date that the Customer registers to use the Service and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive Renewal Periods, unless:
  1. all Authorised Users are deactivated by the Customer before the end of the Initial Subscription Term or any Renewal Period (as the case may be), in which case this Agreement shall terminate upon expiry of the Initial Subscription Term or Renewal Period (as applicable); or
  2. the Customer terminates directly with Koderly, in which case this Agreement shall terminate upon expiry of the Initial Subscription Term or Renewal Period (as applicable)
  3. otherwise terminated in accordance with the provisions of this Agreement;
  and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
2. The Customer may terminate any individual User Subscription without terminating this Agreement as a whole (so long as the remaining number of User Subscriptions does not fall below 1 (one)) via Qucate before the end of the Initial Subscription Term or a Renewal Period in which case that User Subscription shall terminate at the end of the Initial Subscription Term or Renewal Period (as the case may be) during which such notice is received.
3. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
  1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 (seven) days after being notified in writing to make such payment;
  2. the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 (fourteen) days after being notified in writing to do so;
  3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  5. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
  8. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 (fourteen) days;
  11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3.3 to 14.3.10 (inclusive);
  12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
  13. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or
  14. here is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
4. On termination of this Agreement for any reason:
  1. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
  2. 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;
  3. Koderly may destroy or otherwise dispose of any of the Customer Data in its possession unless Koderly receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Koderly shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 (thirty) 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 Koderly in returning or disposing of Customer Data; and
  4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Force Majeure
1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 (four) weeks, the party not affected may terminate this Agreement by giving 7 (seven) days' written notice to the affected party.
Notices
1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
  1. 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 its principal place of business (in any other case); or
  2. sent by email to the email addresses set out in clause 1.1 (or an address substituted in writing by the party to be served).
2. Any notice shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
  3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
3. This clause 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.
General
1. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
2. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
3. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
4. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
5. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
6. If any provision or part-provision of this Agreement is deemed deleted under clause 17.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
7. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
8. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
9. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
10. Nothing in clauses 17.8 or 17.9 shall limit or exclude any liability for fraud.
11. The Customer shall not, without the prior written consent of Koderly, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12. Koderly may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
13. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
15. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
16. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Software as a Service Subscription Agreement relating to Qucate

Agreed Terms and Conditions

Interpretation

Placing an order and its acceptance

User Subscriptions

Additional User Subscriptions

Services

Personal Data

Koderly's Obligations

Customer's Obligations

Charges and Payment

Proprietary Rights

Confidentiality

Indemnity

Limitation of Liability

Term and Termination

Force Majeure

Notices

General