SaaS Terms and Conditions of Contract


1 Basis of contract
1.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
1.2 The Order shall only be deemed to be accepted when INT6 issues written acceptance of the Order at which point and on which date the Contract shall come into existence ("Commencement Date").
1.3 Any samples, drawings, descriptive matter or advertising issued by INT6, and any descriptions or illustrations contained in INT6's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
1.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Terms and conditions of the Customer diverging from these Conditions shall not be valid even if INT6 has effected delivery or rendered services without reservation.
1.5 Any quotation given by INT6 shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue or period specified on the quotation.
2 Licence
2.1 Subject to the Customer paying the Charges and the Conditions of the Contract, INT6 hereby grants to the Customer during the Term:
2.1.1 a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation solely for the Purpose;
2.1.2 a non-exclusive, non-transferable right to incorporate and integrate the Software solely into Infrastructure and / or Custom Modules as are agreed in advance between the parties for the purpose of receiving the Services and using the Software for the Purpose and to permit those Services to be used in association with the Customer's Branding.
subject to the provisions of clause 7.5.
2.2 The licence granted under clause 2.1 is personal to the Customer and shall not be considered granted to any subsidiary or holding company of the Customer. However the Customer may grant to Authorised Users the right to use the Software, to the extent it has been integrated into the Customer's System, in accordance with the Purpose, in order for Authorised Users to use the Software when interacting with the Customer's System.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise illegal or causes damage or injury to any person or property;
and INT6 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.
2.4 The Customer shall not:
2.4.1 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 the Contract:
2.4.1.1 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
2.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.4.3 use the Services and/or Documentation to provide services to third parties or to provide any services outside any Field of Use; or
2.4.4 subject to clause 2.2, 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, or
2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
2.4.6 introduce, or permit the introduction of, any Virus or Vulnerability into INT6's network and information systems.
2.5 The Customer is responsible for any use of its access accounts. The Customer shall:
2.5.1 use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation; and
2.5.2 promptly notify INT6 in the event of any such unauthorised access or use of the Software and / or Documentation.
2.6 Any open-source software ("OSS") provided by the Supplier may be used according to the terms and conditions of the specific licence under which the relevant OSS is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 13.1.3. Such terms and conditions shall govern such use to the extent that they expressly supersede these Conditions.
3 Services
3.1 Subject to the Customer's compliance with clause 8, INT6 shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Contract.
3.2 INT6 shall use reasonable endeavours to meet the performance dates agreed in writing between the parties, but any such dates shall be estimates only, and time shall not be of the essence in the Contract
3.3 Subject to the Customer's compliance with clause 8, the Software shall incorporate the Customer Data and shall be made available to the Customer in accordance with the Documentation.
Software Review Period
3.4 The Customer shall review the Software within the Software Review Period to confirm that it:
3.4.1 functions in material conformance with the applicable portion of the Documentation; and
3.4.2 incorporates the Customer Data to its reasonable satisfaction.
3.5 If the Software does not meet the criteria in clause 3.4, the Customer shall give INT6 a detailed description of any such non-conformance ("Error"), in writing, within the Software Review Period.
3.6 INT6 shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Software to the Customer. The provisions of this clause 3.6 shall then apply again, up to 5 additional times. If INT6 is unable to correct such Error, to the satisfaction of the Customer, acting reasonably, after five attempts, either party may terminate the Contract subject to the provisions of clause 14.
3.7 If the Customer does not identify any Errors within the Software Review Period or confirms that the Software meets the criteria in clause 3.4 or uses the Software, the Software shall be deemed accepted.
Availability
3.8 INT6 shall use reasonable endeavours to make the Services available in accordance with the Documentation within Normal Business Hours during the Term except for:
3.8.1 planned maintenance carried out during Normal Business Hours provided INT6 has given the Customer at least 2 Business Days' notice in advance (or within the time period otherwise agreed between the parties as Custom Support); and
3.8.2 unscheduled maintenance performed outside Normal Business Hours, provided that INT6 has used reasonable endeavours to give the Customer at least 4 Normal Business Hours' notice in advance.
Support Services
3.9 INT6 will, at no additional cost to the Customer, provide the Customer with Basic Support during Normal Business Hours. INT6 will monitor, update and improve the Core Platform as required (at INT6's sole discretion), including basic monitoring 24 hours a day, seven days a week, with performance improvements and updates carried out. The Customer may purchase enhanced Custom Support for an additional fee.
3.10 From time to time INT6 may:
3.10.1 modify the Services by issuing updates; and
3.10.2 make new features, functionality, applications or tools available in respect of the Services, whose use may be subject to the Customer's acceptance of further terms and conditions;
and shall give the Customer prompt written notice of material modifications to the Services and any such new features, functionality, applications or tools.
Monitoring
3.11 Each party shall provide to the other the contact details of their nominated Contract Manager or, where relevant, of the nominated representative of their Contract Manager and shall notify the other party of any changes in such details. The Contract Managers shall assess all matters relating to the progress and performance of the Services and attend regular meetings which may be required to ensure continued provision of the Services, which may take place by video conference; and, where authorised, incorporate any necessary variations to this Agreement into a new revision or addendum to this Agreement within a reasonable period of such review.
4 Customer Data
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. The Customer grants INT6 and its subcontractors a non-exclusive, royalty-free licence to use, modify and distribute the Customer Data for the purposes of providing Software, Custom Modules (where applicable), and the Services.
4.2 Unless INT6 otherwise agrees to provide the Customer Custom Support, the parties acknowledge and agree that:
4.2.1 INT6 is not responsible or liable for the deletion of or failure to store any of the Software, the Customer Data and other communications maintained or transmitted through use of the Services; and
4.2.2 the Customer is solely responsible for backing up and securing all Customer Data.
5 Data Protection
5.1 In the event the Customer requires INT6 to process personal data in connection with the provision of the Services, the Customer shall not disclose any personal data without INT6's prior written consent.
5.2 Subject to clause 5.1, for the purposes of Data Protection Law the parties acknowledge that the Customer is the controller, and INT6 is a processor, in relation to the processing of any personal data relating to Authorised Users or other users of the Services ("Disclosed Data") by INT6 in connection with the provision of the Services.
5.3 The Customer shall comply with its obligations under Data Protection Law in relation to the processing of Disclosed Data by INT6.
5.4 INT6 will:
5.4.1 process the Disclosed Data for the purposes of providing the Services, and subject to the Customer's express written instructions from time to time. If INT6 considers that any instruction from the Customer contravenes Data Protection Law, it shall inform the Customer, giving reasonable details
5.4.2 ensure that the Disclosed Data is Processed only by employees, contractors or other personnel that are subject to an appropriate duty of confidentiality;
5.4.3 in accordance with its obligations under Data Protection law, implement appropriate technical and organisational security measures in processing the Disclosed Data;
5.4.4 not make any change to its sub-processors without first providing the Customer with a reasonable period of time within which to object. For the purposes of this clause 5.4.4 the Customer acknowledges that as at the Commencement Date INT6 uses (or intends to use) the sub-processors set out or referenced in the Order;
5.4.5 at the Customer's cost and expense, and taking into account the nature of the processing and information available to INT6:
5.4.5.1 insofar as is reasonably possible, assist the Customer in responding to requests by data subjects to exercise their rights under Data Protection Law;
5.4.5.2 assist the Customer in complying with its obligations under Data Protection Law in relation to information security and in carrying out data protection impact assessments;
5.4.5.3 except to the extent that INT6 is required by law to retain any copies of any Disclosed Data, upon the expiry or termination of the Contract INT6 will deliver to the Customer or destroy and/or permanently delete from its information technology systems all copies of any Disclosed Data in its possession;
5.4.5.4 provide such information and assistance as is necessary to demonstrate INT6's compliance with its obligations in relation to the processing of the Disclosed Data.
5.5 The Customer acknowledges that INT6 shall not be in breach of any of its obligations under the Contract to the extent that INT6 is delayed or hindered in performance as a consequence of complying with a request or instruction from the Customer under this clause 5.
6 Third party providers
The Customer acknowledges that the Services may enable or assist it or any Authorised User to access to content, products and services from third parties and that it does so solely at its own risk. INT6 makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party content, or any transactions completed, and any contract entered into by the Customer or any Authorised User (as the case may be), with any such third party. Any contract entered into and any transaction completed via any third-party content, website or link is between the Customer or relevant Authorised-User (as the case may be) and the relevant third party, and not INT6. INT6 recommends that the Customer or Authorised User refers to the third party's terms and conditions and privacy policy prior to using the relevant third-party content. INT6 does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7 INT6's obligations
7.1 INT6 undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 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 INT6's instructions or the Documentation; modification or alteration of the Services by any party other than INT6 or INT6's duly authorised contractors or agents; failure by the Customer to provide the Customer Data, including any Customer Data that is materially inaccurate, or complete and /or is not in the format specified in the Documentation. INT6 will:
7.3 Save in respect of Errors and the process for rectifying Errors in the Software Review Period, if the Software does not conform with the undertaking at clause 7.1, INT6 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.
7.4 INT6:
7.4.1 does not warrant that:
7.4.1.1 the Customer's use of the Services will be uninterrupted or error-free;
7.4.1.2 the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;
7.4.1.3 the Software, any Custom Modules, or the Services will be free from Vulnerabilities or Viruses; or
7.4.2 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.
7.5 The Contract shall not prevent INT6 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. The Customer acknowledges that INT6 may grant rights equivalent to those granted to the Customer pursuant to clause 2.1 and/or provide similar Services to any such third parties as INT6, in its absolute discretion, deems appropriate, except to the extent INT6 has agreed otherwise as a Special Condition.
7.6 INT6 warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
8 Customer's obligations
8.1 The Customer shall:
8.1.1 provide INT6 with:
8.1.1.1 all necessary co-operation in relation to the Contract; and
8.1.1.2 all Customer Data and necessary access to such information and Infrastructure as may be required by INT6 in such format as specified in the Documentation;
8.1.1.3 all necessary support in order to incorporate and configure the Customer Data to the Software and, if applicable, any Custom Modules; and
8.1.1.4 all necessary technical support in order to integrate and configure the Software and, if applicable, any Custom Modules, with the Customer's System.
in order to provide the Services, including Customer Data, security access information and configuration services;
8.1.2 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
8.1.3 carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, INT6 may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with these Conditions and shall be responsible for any breach caused or contributed to by any acts or omissions on the part of any Authorised User or third party to whom the Customer grants access;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for INT6, its contractors and agents to perform their obligations under the Contract, including without limitation the Services
8.1.6 ensure that its network and systems comply with the relevant specifications provided by INT6 from time to time; and
8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to INT6'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.
8.2 The Customer acknowledges and agrees that, unless otherwise agreed as a Special Condition:
8.2.1 INT6 may include the Customer's name or the Customer's Branding in a list of INT6's customers in any medium; and
8.2.2 INT6 may refer to the Customer, orally or in writing, as a customer of the Services for promotional, marketing and financial reporting purposes.
8.3If the Customer wishes to display INT6's Branding in relation to its use of the Services, the Customer shall obtain a written licence from INT6 through the process specified in INT6's Branding guidelines; and comply with those instructions.
8.4 If INT6's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (a "Customer Default"):
8.4.1 without limiting or affecting any other right or remedy available to it, INT6 shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays INT6's performance of any of its obligations;
8.4.2 INT6 shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from INT6's failure or delay to perform any of its obligations as set out in this Clause 8; and
8.4.3 the Customer shall reimburse INT6 on written demand for any costs or losses sustained or incurred by INT6 arising directly or indirectly from the Customer Default.
9 Charges and payment
9.1 The Customer shall pay the Charges to INT6 for the Services in accordance with this clause 9.
9.2 All Charges payable by the Customer for the Services shall be calculated and invoiced in accordance with the Order and shall be due and payable 30 Business Days after the date of the invoice, except for any project implementation costs which are payable in full and due in advance, on or before the Commencement Date and payable into the nominated bank account of INT6.
9.3 The Customer shall pay the Charges each month by Direct Debit. INT6 shall invoice the Customer for the Charges on a monthly basis, at the start of the relevant month to which it relates, in accordance with the Direct Debit rules and regulations.
9.4 The Customer shall on the Commencement Date provide to INT6 valid, up-to-date and complete Direct Debit details or approved purchase order information acceptable to INT6 and any other relevant valid, up-to-date and complete contact and billing details and the Customer hereby authorises INT6 to collect such monthly payments from the Customer by Direct Debit. Full terms for Direct Debit are sent with the Direct Debit form at the time of agreeing the Services costs. The Direct Debit form must be completed and in place prior to the Commencement Date.
9.5 INT6 may, without liability to the Customer, suspend access to all or part of the Services and INT6 shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.5.1 without limiting or affecting any other right or remedy available to it, INT6 shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays INT6's performance of any of its obligations;
9.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 6% over the then current base lending rate of Bank of Scotland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.6 All Charges and amounts stated or referred to in the Contract:
9.6.1 shall be payable in pounds sterling;
9.6.2 are, subject to clause 13.3.2, non-cancellable and non-refundable;
9.6.3 are exclusive of value added tax, which shall be added to INT6's invoice(s) at the appropriate rate.
9.7 INT6 shall be entitled to increase the Charges, on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index (All Items) (or any replacement index) in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index (All Items).
10 Proprietary rights
10.1 The Customer acknowledges and agrees that INT6 and/or its licensors own all Intellectual Property Rights in the Software and the Documentation and arising from the Services. Except as expressly stated herein, the Contract does not grant the Customer any rights, to any Intellectual Property Rights in respect of the Software, the Services or the Documentation.
10.2 INT6 confirms that it has all the rights in relation to the Software, Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract
10.3Subject to clause 10.4, all Intellectual Property Rights in or arising out of or in connection with the Services (but excluding the Customer Data provided by the Customer) shall be owned by INT6.
10.4The Customer will own all Intellectual Property Rights in the Custom Modules (other than the Software or any OSS), to the extent specifically developed by INT6 for the Customer. The Customer hereby grants to INT6 a non-exclusive, royalty-free, perpetual and irrevocable licence to use the Custom Modules, including to enable INT6 to provide the Services and to enable INT6 to carry out any acts that would otherwise be restricted by any of the Customer's Intellectual Property Rights, save to the extent agreed in the Special Conditions, including (without limitation) to modify, develop, enhance, improve, reproduce or use in connection with the Software.
10.5All uses of a party's Branding under clause 8.2 or 8.3 (as the case may be), including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in the Branding.
11 Confidentiality
11.1Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party's Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2was in the other party's lawful possession before the disclosure;
11.1.3is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Contract.
11.3Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.
11.4A 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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, or any analysis or trends identified by INT6 from use of the Software and Services by the Customer and Authorised Users constitutes INT6's Confidential Information.
11.6No party shall make, or permit any person to make, any public announcement concerning the Contract 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.
11.7The above provisions of this clause 11.7 shall survive termination of the Contract, however arising.
12 Indemnity
12.1The Customer shall defend, indemnify and hold harmless INT6 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 INT6's use of the Customer Data in accordance with the Contract, the Customer's Branding, or the Customer's (or any Authorised User's) use of the Services, Custom Modules (if any) and/or Documentation, provided that:
12.1.1the Customer is given prompt notice of any such claim;
12.1.2INT6 provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
12.1.3the Customer is given sole authority to defend or settle the claim.
12.2INT6 shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services, Custom Modules (if any) or Documentation in accordance with the Contract infringes any United Kingdom patent effective as of the Commencement 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:
12.2.1INT6 is given prompt notice of any such claim;
12.2.2the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to INT6 in the defence and settlement of such claim, at INT6's expense; and
12.2.3INT6 is given sole authority to defend or settle the claim.
12.3In the defence or settlement of any claim, INT6 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 Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4In no event shall INT6, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1a modification of the Software, Custom Modules (if any), Services or Documentation by anyone other than INT6; or
12.4.2the Customer's or any Authorised User's use of the Software, Custom Modules (if any), Services or Documentation in a manner contrary to the instructions given to the Customer by INT6; or
12.4.3the use of the Customer Data; or
12.4.4the Customer's use of the Software, Services or Documentation after notice of the alleged or actual infringement from INT6 or any appropriate authority.
12.5 The foregoing and clause 13.3.2 state the Customer's sole and exclusive rights and remedies, and INT6's (including INT6's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.
13 Limitation of liability
13.1Except as expressly and specifically provided in the Contract:
13.1.1the Customer assumes sole responsibility for:
13.1.1.1the accuracy and results obtained from the use of the Software, Custom Modules (if any), Services and the Documentation by the Customer and Authorised Users, and for any and all conclusions drawn from such use by the Customer and Authorised Users; and
13.1.1.2ensuring that its use of the Software and any information provided to Authorised Users using the Software is accurate and complies with all applicable laws and regulations, including consumer protection laws and trading standards;
13.1.2INT6 shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to INT6 by the Customer in connection with the Software or Services, or any actions taken by INT6 at the Customer's direction;
13.1.3all 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 the Contract; and
13.1.4the Software, Services and the Documentation are provided to the Customer on an "as is" basis.
13.2Nothing in the Contract excludes the liability of INT6:
13.2.1for death or personal injury caused by INT6's negligence; or
13.2.2for fraud or fraudulent misrepresentation.
13.3Subject to clause 13.1 and clause 13.2:
13.3.1INT6 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 the Contract; and
13.3.2INT6'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 the Contract shall be limited to the total Charges paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
13.4Nothing in the Contract excludes the liability of the Customer for any breach, infringement or misappropriation of INT6's Intellectual Property Rights.
14 Term and termination
14.1This Contract shall, unless otherwise terminated as provided in this clause 14, commence on the Commencement Date and shall continue for the Initial Term and, thereafter, the Contract shall be automatically renewed for successive periods of 1 month or such other period specified in the Order (each a Renewal Period), unless:
14.1.1either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or at least 30 days before the end of any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
14.1.2otherwise terminated in accordance with the provisions of the Contract; and
14.1.3the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.2.1the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.2.2the other party commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.2.3the 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;
14.2.4the 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;
14.2.5the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
14.2.6a 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;
14.2.7an 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);
14.2.8the 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;
14.2.9a 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;
14.2.10a 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 days;
14.2.11any 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 14.2.3 to clause 14.2.10 (inclusive);
14.2.12the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.2.13the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
14.3Without affecting any other right or remedy available to it, INT6 may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer undergoes a change of Control.
14.4On termination of the Contract for any reason:
14.4.1all licences granted to the Customer under this Contract shall immediately terminate and the Customer shall immediately cease all use of the Software, Services and/or the Documentation;
14.4.2each 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;
14.4.3without limiting the effect of 14.4.2 INT6 may require the Customer immediately to return all copies of the Software, the Documentation, INT6's Confidential Information and any other materials or to delete the same from the Customer's computer and communications systems and devices used by the Customer, including such systems and data storage services provided by third parties (to the extent technically and legally practicable). The Customer may, at INT6's request, be required to confirm in writing that all such copies have been returned or so deleted. Any electronic data shall be considered deleted for the purpose of this clause where it has been put beyond used by the deleting party.
14.4.4INT6 may destroy or otherwise dispose of any of the Customer Data in its possession unless INT6 receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. INT6 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 INT6 in returning or disposing of Customer Data; and
14.4.5any 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.
15 Force majeure
INT6 shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of INT6 or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of INT6s or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16 Conflict
If there is an inconsistency between any of the provisions in these Conditions and the Order, the provisions in the main body of these Conditions shall prevail.
17Variation
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18 Waiver
No failure or delay by a party to exercise any right or remedy provided under the 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.
19 Rights and remedies
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
20 Severance
20.1If any provision or part-provision of the Contract 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 the Contract.
20.2If any provision or part-provision of the Contract is deemed deleted under clause 20.1 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.
21 Entire agreement
21.1This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract 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 the Contract.
21.2Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
22 Assignation
The Customer shall not, without the prior written consent of INT6, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. INT6 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 the Contract.
23 No partnership or agency
Nothing in the Contract 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).
24 Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contract (Third Party Rights) (Scotland) Act 2017.
25 Notices
25.1Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in the Order.
25.2A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
26 Governing law
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 construed in accordance with the laws of Scotland.
27 Jurisdiction
Each party irrevocably agrees that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
28 Definitions and interpretation
28.1In these Conditions:
"Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
"Back-up Policy" means INT6 policy relating to back-ups of Customer Data tailored to the Customer and notified to the Customer from time to time and as may be amended by INT6 in its sole discretion from time to time.
"Basic Support" means the basic support services to be provided by INT6 to the Customer as set out in the Documentation, consultancy, advice, monitoring and management of the Core Platform, its servers and infrastructure and security updates.
"Branding" means any trade marks, trade names, service marks, trade dress, logos, URLs and domain names; any identifying slogans and symbols (including any abbreviation, contraction or simulation of any of the foregoing items) of a party to the Contract, whether or not registered.
"Business Day" means a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
"Change of Control" means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
"Charges" means the licence fee payable by the Customer to INT6 for the Services and Basic Support, and, where applicable, any additional fees for any Custom Modules, Custom Support or any additional services as set out in the Order.
"Commencement Date" shall have the meaning given in clause 1.2.
"Conditions" means these terms and conditions of the Contract as amended from time to time in accordance with clause 17.
"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
"Contract" means the contract between INT6 and the Customer for the supply of Services, comprising the Order and these Conditions and where applicable, the Special Conditions.
"Contract Manager" means the person appointed by each party to represent it in relation to day to day matters arising in relation to the Services, as specified in the Order.
"Core Platform" means the core business software applications, tools and platform owned or developed by INT6, which it makes available to Customers for the purpose of managing business data and information, as described in the Documentation.
"Customer" means the entity noted in the Order as the entity purchasing the Services from INT6 in accordance with the Contract.
"Customer Data" means the data, text, information, data, images, audio or video material, in whatever medium or form, provided or inputted by the Customer, Authorised Users, or INT6 on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
"Custom Modules" means the software modules specifically designed and / or customised for the Customer by INT6 in accordance with the specification approved by INT6 and as described in the Order.
"Custom Support" means any enhanced support in relation to the Services (including but not restricted to upgrades to the Core Platform or Custom Modules, any enhanced Infrastructure, enhanced maintenance, heightened service levels, penetration testing or security requirements, or any other Customer requirements) for an additional fee, as specified in the Order.
"Data Protection Law" means any applicable laws and regulations relating to privacy or data protection.
Documentation" means the document made available to the Customer by INT6 from time to time which sets out a description of the Services and the user instructions for the Services.
"Field of Use" means the field of use specified in the Order.
"Infrastructure" means any data centre infrastructure, data management limits, standard levels of server hardware, network speed and file storage capacity hardware, as specified in the Order.
"Initial Term" means the initial term of the Contract as set out in the Order.
"INT6" means INT6 LTD incorporated and registered in Scotland with company number SC547705 whose registered office is at 3 Prospect Place, Westhill, Scotland, AB32 6SY.
"Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Normal Business Hours" means 9.00 am to 5.00 pm local UK time, each Business Day.
"Order" means the Customer's order for Services as set out in the proposal issued by INT6, including the Customer order details, signed and returned by the Customer.
Purpose" means the intended use of the Software by the Customer for its internal business operations as set out in the Order.
"Renewal Period" means the period described in clause 14.1.
"Services" means the provision of the services by INT6 to the Customer as more particularly described in the Order and Documentation, including:
  1. of the provision of the Software, incorporating the Customer Data and Support Services;
  2. the hosting of the Software and / or any Custom Modules; and
  3. such other services as INT6 may decide at its discretion to design, develop, build, implement, configure or integrate into the Core Platform or offer the Customer from time to time.
"Software" means the Core Platform, and any other software, online tools or applications specified in the Order, to be provided to the Customer as part of the Services, as more particularly described in the Documentation, other than the Custom Modules.
"Software Review Period" means 10 Business Days from the date on which the Software is made available by INT6 to the Customer for review under clause 3.4.
"Special Condition(s)" means any special conditions agreed between the parties and specified in the Order.
"Support Services" means the Basic Support together with any Custom Support specified in the Order.
"Support Services Policy" means INT6's policy for providing support in relation to the Services as may be notified to the Customer from time to time.
"Term" has the meaning given in clause 14.1 (being the Initial Term together with any subsequent Renewal Periods).
"Virus" means 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.
"Vulnerability" means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
28.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Contract.
28.3 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.
28.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
28.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
28.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
28.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
28.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
28.9 References to clauses and schedules are to the clauses and schedules of the Contract; references to paragraphs are to paragraphs of the relevant schedule to the Contract.