SCA
ShopperVista
Terms of Business

This document sets out the terms and conditions upon which IGD provides ShopperVista information services. These Terms shall apply to any Order that you place with us and that we have accepted in accordance with these Terms.

"We", "us" or "our" refers to IGD Services Limited, a company registered in England (whose company number is 3357260 and whose registered office is at Grange Lane, Letchmore Heath, Watford, Herts, WD25 8GD). "You" or "your" refers to the person who (or on whose behalf) an Order is placed.

1

Interpretation

1.1

Unless the context otherwise requires, the other defined terms used in this document have the following meanings:

1.1.2

"Authorised User" is an individual who is an employee of you and is nominated by you to use the Service in the Order or as otherwise agreed by us in writing;

1.1.3

"Breach of Duty" is the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

1.1.4

"Charges" are those fees and charges payable by you to us under this Agreement;

1.1.5

"Copyright Notice" is the copyright notice accessible from the Website from time to time;

1.1.6

"Contract Period" is the Initial Period and any subsequent Renewal Period which is agreed between you and us;

1.1.7

"Intellectual Property Rights" are all intellectual and industrial property rights of any nature anywhere in the world including copyright, database rights, patents, design rights, registered designs, trade mark rights, service mark rights, domain name rights, knowhow and topography rights, whether or not registered or capable of protection by registration and the right to apply for any of them;

1.1.8

"Initial Period" is the period of time designated as such and as set out in the Order;

1.1.9

"IPR" is the Intellectual Property Rights (or those of our licensors) which are licensed or made available to you under this Agreement;

1.1.10

"Liability" is liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract).

1.1.11

"Materials" are materials of any nature and on any medium that we provide or make available to you as part of the Service (including information, software, documentation, data, diagrams, charts, records and reports);

1.1.12

"Order" is an order placed by you and accepted by us in accordance with these Terms;

1.1.13

"Personnel" are individuals who are employees of you;

1.1.14

"Privacy Policy" is the privacy policy accessible from the Website from time to time;

1.1.15

"Renewal Period" is defined in clause 2.2;

1.1.16

"Service" is the ShopperVista information service requested in your Order and as further detailed in these Terms;

1.1.17

"Site Terms" is the site terms accessible from the Website from time to time;

1.1.18

"Terms" are the terms and conditions set out in this document;

1.1.19

"Website" is the web site operated by us to provide the Service, currently at the following uniform resource locator address: "www.ShopperVista.igd.com".

1.2

In this Agreement:

1.2.1

the headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;

1.2.2

words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and vice versa and references to persons shall include an individual, company, corporation, firm or partnership;

1.2.3

references to “includes” or “including” or like words or expressions shall mean without limitation; and

1.2.4

references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

2

Duration

2.1

In respect of the Service which we supply to you, this Agreement shall be effective from the date on which we accept your Order in accordance with clause 3 and, except for termination as specifically mentioned in this Agreement, the Service shall be provided for the Initial Period.

2.2

This Agreement may be extended and continue in force for any further period if you and we agree to extend the Contract Period (each such extended period being a "Renewal Period"). You and we may agree to such extension orally, in writing, by e-mail or by any other method, but a Renewal Period shall only be binding on us if we have confirmed that Renewal Period in writing, by e-mail or by other durable medium.

3

The Service

3.1

If we accept your Order, we shall provide the Service to you.

3.2

We shall use all reasonable endeavours to ensure that the Service is provided to you in accordance with any timescales, delivery requirements and other specifications described in your Order but time for delivery shall not be of the essence of this Agreement.

3.3

In the event of any conflict between the provisions of these Terms, the Site Terms, the Privacy Policy and the Order, then the following order of precedence shall apply to the extent of any conflict:

3.3.1

the Terms prevails over

3.3.2

the Site Terms, which prevail over

3.3.3

the Privacy Policy, which prevails over

3.3.4

the Order.

4

Orders

4.1

In your Order, you shall provide all such information as we require. You must ensure that the terms of your Order are complete and accurate.

4.2

An Order shall only be binding, and acceptance shall only occur, upon the earlier of: (a) receipt by you of our confirmed acceptance in writing, by e-mail or other durable medium; or (b) dispatch by us to you of your username and password log-in details; or (c) collection by us from you of the Charges; or (d) provision of the Service by us to you.

4.3

We may, but will not necessarily, acknowledge receipt of your Order. If we do so, the acknowledgement of receipt shall not constitute our acceptance of your Order unless we expressly stipulate that it is acceptance.

4.4

These Terms apply to the Order to the exclusion of any terms and conditions submitted, proposed or stipulated by you. If you provide us with a purchase order for the Service, the purchase order shall be purely for your administrative purposes only and shall not form part of this Agreement.

4.5

You may not cancel or amend an Order unless we have given our express written or e-mail consent.

4.6

We may assume that any person who reasonably holds themselves out as being your authorised representative, shall be entitled to place an Order on your behalf.

5

Licence

5.1

You acknowledge that the legal and beneficial interest in Intellectual Property Rights relating to, or developed by us or our suppliers in connection with the Service belong to us or our licensors. This includes all Intellectual Property Rights in any Materials.

5.2

You will not alter or make any addition to the labelling or packaging of the Materials and shall not alter, deface or remove in any manner any trade mark, logo, symbol or name attached or affixed to the Materials or their packaging or labelling.

5.3

We grant to you a non-exclusive, non-transferable, non-sublicensable, non-assignable licence to use the Intellectual Property Rights referred to in clause 5.1 for the sole purpose of receiving the Service and making use of the Website and the Materials. This licence is subject to the following restrictions:

5.3.1

you may only use those Intellectual Property Rights for your own internal business purposes at the site(s) and/or countries specified in the relevant Order;

5.3.2

you may permit only Authorised Users to use or access the Service and view the Materials;

5.3.3

Authorised Users may save the Materials to their local hard drive, make an additional copy for archiving or back-up purposes and print one copy for their own use, but unless we agree otherwise in writing, Authorised users may not share Materials with any unauthorised people nor over a network in which unauthorised people may have access;

5.3.4

an Authorised User must not access or store the Materials concurrently from or on more than one computer; each additional use will count as an additional Authorised User;

5.3.5

you may use those Intellectual Property Rights in accordance with clause 5.4 for the sole external purpose of marketing or promoting your normal business to an existing or potential retail customer who is the subject of the Service;

5.3.6

you may not, without our prior written consent, make available, copy, reproduce, retransmit, disseminate, sell, license, distribute, publish, broadcast or otherwise circulate Materials that we make available to you to any other person (including your Personnel, agents, contractors and customers) or use the Materials in any way other than as expressly permitted by us;

5.3.7

you may only use the Materials and/or Intellectual Property Rights relating thereto, for internal business purposes (including internal project work, background information, for modelling purposes); and

5.3.8

Save as permitted in clause 5.3.5, you will not use the Materials and/or Intellectual Property Rights relating thereto, or any part of them (including for the avoidance of doubt any reference to IGD) in any external publication (eg brokers notes), external presentation or press or publicity unless you have prior written consent from us;  

5.3.9

You will not use or present the Materials in a misleading or illegal manner, or in any way which would adversely impact upon our reputation or goodwill, and we reserve the right to publish a correction if we become aware of such use or penetration.

5.4

You may include limited extracts of Materials in communications to your Personnel who are not Authorised Users and to existing or potential customers in the normal course of your business, provided that: (a) you do not charge any money or anything for money's worth for supply of any of the Materials; and (b) you do not disclose more than a small part of any text, tables or charts from the Materials and in particular not more than 10% of any report, presentation or profile; and (c) you credit us as the source of the information and include our copyright notice; and (d) you fairly represent and do not alter the extracts of the Materials in any way and (e) you do not use any video content in your marketing. You may also store Materials on an electronic storage device provided that adequate security measures are in place to protect the Materials from disclosure to or viewing by Personnel who are not Authorised Users.

6

Authorised Users

6.1

You acknowledge that the type of licence referred to in the Order and the price paid by you will determine the number of Authorised Users.

6.2

If there is a maximum number of permitted Authorised Users, then they shall be the Personnel specified in the Order or registered on the Website at a later stage.

6.3

If you would like to have more than 15 Authorised Users, you must first obtain "Corporate Access". Corporate Access does not necessarily mean access by anyone in your organisation. The Corporate Access option is only available if we have specifically agreed the extent of usage in terms of number, type and location of Personnel with you in writing, by e-mail or by other durable form.

6.4

You shall ensure that Materials are only made available to and accessed by Authorised Users in accordance with these Terms.

6.5

If the people who constitute Authorised Users change from time to time, you shall promptly notify us of the change in an Authorised User and provide all details required by us in relation to those individuals who are to become Authorised Users.

6.6

You agree to co-operate with us if we wish to monitor your compliance with this clause 6 (such co-operation to include providing us with access to premises, allowing us to inspect the way in which Materials are used by Personnel and allowing us to take copies of any information or documentation relevant to your compliance or otherwise (as the case may be) with this clause 6) ("Audit").

6.7

If an Audit reveals that any Materials are used by Personnel or any of your agents or sub-contractors who are not Authorised Users you agree to promptly reimburse us for any underpaid licence fees (at our then current list price) together with any costs incurred by us in carrying out the Audit. In addition, you acknowledge that in such circumstances we reserve the right, at our discretion, to immediately terminate this Agreement without notice.

7

Charges

7.1

The Charges for the Service shall be our standard fees and charges stipulated at the time of the Order or as otherwise agreed in writing or by e-mail by us. If we agree to Renewal Period, then the Charges payable for any such Renewal Period shall be our standard fees and charges stipulated at the date on which we agree to the Renewal Period or as otherwise agreed in writing or by e-mail by us.

7.2

If you cross a threshold so that further Charges are payable as a result of an increase in the number of your Authorised Users, those further Charges are payable from the date on which the threshold is crossed. The portion of extra Charges shall be pro rata according to the number of full months left in the current Contract Period.

7.3

You shall not be entitled to withhold any payments in whole or in part on the ground that you have a claim, counterclaim or set-off against us.

7.4

Charges are exclusive of all current and future taxes and fees, all of which you will be responsible for and will pay in full (except for taxes based on our net income).

7.5

You must pay for the Charges and taxes in full within 28 days of the invoice date.

7.6

If you are late in paying us any fee or charge or tax under this Agreement, then without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law we may charge interest at the annual rate of 8% above the official dealing rate of the Bank of England from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly.

7.7

If you do not make any payment when due, we may in addition, notify you to do any or all of the following:

7.7.1

modify the payment terms to require you to make full payment in advance;

7.7.2

suspend all or part of the Service; or

7.7.3

require you to provide such other assurances as we may reasonably require in order to secure your payment obligations.

7.8

Subject to clause 14.1, if we become entitled to terminate this Agreement or this Agreement is terminated for any reason, any sums then due to us will immediately become payable by you in full.

8

Warranties

8.1

We warrant that we will:

8.1.1

provide the Service (and any Materials provided as part of the Service) to you with reasonable skill and care; and

8.1.2

use our reasonable endeavours to make the Website available to you with reasonable skill and care,

but we make no other warranties (express or implied) as to the Service, the Website or the Materials.

8.2

Without prejudice to the generality of the foregoing, we do not warrant that the Service, the Website or any Materials will meet your present or future needs or requirements or that the Service, the Website or the Materials will be complete, error-free or wholly accurate or that they will be delivered without interruption, fault or error. It is possible that some errors or omissions may occur because of the immense quantity of information and some information cannot always be verified.

8.3

We do not warrant that the Service, the Website and any Materials should be used as the deciding factor for any business decision and any business or other decision you take on the basis of the Service, the Website or any of the Materials is your responsibility.

8.4

The time for provision of the Service, the Website or any Materials shall not be of the essence.

8.5

You assume sole responsibility for the use, selection and suitability of the Service for your needs and objectives and acknowledge that except as above we do not provide any additional warranties or guarantees relating to the Service, the Website or any Materials provided as part of the Service.

8.6

You warrant that you shall comply with all applicable laws and regulations and shall not knowingly use the Service, the Website or any Materials for any improper or unlawful purposes (including infringing any Intellectual Property Rights).

8.7

You warrant that during the Contract Period:

  1. you are not (i) impersonating anybody, (ii) misrepresenting a relationship with any body or person, or (iii) representing more than one company, and
  2. you are not acting contrary to the interest of IGD (in IGD’s opinion), and
  3. you are not a competitor of IGD (in IGD’s opinion)

9

Intellectual Property Rights and Indemnities

9.1

We shall defend you or, at our option, settle any claim or action brought against you alleging that the use of our IPR infringes the UK Intellectual Property Rights of a third party or against any claim as to the validity of our IPR by any third party (“Infringement Claim”), provided that you shall at all times indemnify us in full in respect of any claim of infringement of any third party’s Intellectual Property Rights arising as a result of your use of such IPR outside the terms of this Agreement.

9.2

You agree to allow us and our licensors to have control of any proceedings arising as a result of any Infringement Claim or threatened Infringement Claim and you agree that you will make no admission as to liability and that you will not agree to any settlement or compromise of any action without our consent (or that of our licensors) (as the case may be).

9.3

You agree that you will, at our request and at our cost, lend your name to and offer such other assistance as we may reasonably request in relation to any proceedings to protect our IPR. Any recovery obtained from such proceedings shall accrue solely for our benefit although we will reimburse to you any costs reasonably incurred by you in assisting with such proceedings.

9.4

If an Infringement Claim or threatened Infringement Claim occurs in relation to the Service, or if we consider that such a claim is likely to occur we shall have the right at our sole discretion to either:

9.4.1

procure for you the right or licence to use the Service free of the Infringement Claim; or

9.4.2

replace or modify the Service to make it non-infringing; or

9.4.3

terminate that part of the Service which relates to the infringement (or potential infringement) and return any Charges paid by you for that part of the Service in full and final settlement of any claims in respect thereof; or

9.4.4

if none of these options is reasonably practicable, terminate this Agreement and return any Charges paid by you for the affected Service in full and final settlement.

10

Passwords

10.1

We may provide you with user IDs and passwords in respect of each Authorised User who is entitled to access the Website (or to all Authorised Users if you have requested and we have agreed Corporate Access). Alternatively, we may agree to provide access to all computers from a range of Internet Protocol addresses that you tell us belong to you. You shall be responsible for informing us as soon as any of those addresses are no longer used by you.

10.2

We may also use cookies to recognise computers from which Authorised Users have either had access before or are within the relevant range of Internet Protocol addresses.

10.3

You acknowledge that each password is unique and you agree to put in place appropriate technical and administrative controls to ensure the safekeeping of passwords and ensure that use of: (a) user IDs and passwords; (b) computers that have previously been allocated user IDs; and (c) passwords or computers within your designated Internet Protocol address range, is strictly limited to the current relevant Authorised Users (whether or not we have issued passwords on an individual or a corporate basis) and that in no circumstances are passwords shared with anyone.

10.4

You shall immediately notify us upon becoming aware or reasonably suspecting of any unauthorised use of a username, password or a computer.

10.5

You shall ensure that Authorised Users do not download more than the number of copies of the Material specified to which they are entitled from the Website and that they do not copy the Material or make it available to any third party other than as authorised by us.

10.6

We shall be entitled to assume that any acts or dealings made through the Website from a computer where a valid username or password has been entered or within the designated Internet Protocol address range are made by an Authorised User and that such dealings are made on behalf of you. You shall remain responsible in respect of all such acts and dealings.

11

Access and Use

11.1

You will comply with all reasonable instructions issued by us from time to time relating to use of the Website (including the Site Terms, Copyright Notice and any additional terms and conditions posted on the Website).

11.2

You acknowledge that from time to time we may need to carry out maintenance of the Website, and that the server hosting the Website may experience problems and/or access to some or all of the Website may be temporarily suspended. We shall use reasonable endeavours to ensure maintenance is carried out with as little disruption as reasonably practicable to the ability of Authorised Users to access the Website.

11.3

We shall, in any event, be entitled to suspend, restrict or terminate access to the Website or to modify any part of the Website for any reason at any time.

11.4

You agree not to use the Service made available to you on or via the Website such that you cause the whole or part of the Website or such Service to be interrupted, damaged, rendered less efficient or in any way impaired for you, your Authorised Users or any third party.

11.5

You agree that you will only use the Website in a manner which is consistent with this Agreement and in such a way as to ensure compliance with applicable laws and regulations. In particular you will not use the Website to transmit, post or download any material which is defamatory, offensive or of an obscene or menacing character or which in our judgement may cause annoyance, inconvenience or anxiety to any person. We reserve the right to remove any information that you transmit, post or download at our sole discretion without notifying you.

11.6

You shall be responsible for making all arrangements that will allow you to access the Website (including obtaining the equipment and paying for telephony and other charges which are necessary for you to access the Website).

12

Data Protection

12.1

You acknowledge that prior to and when an Authorised User accesses the Website we will collect personal data regarding their identity and the way in which they use the Website. This information will be used by us to provide user IDs and passwords, to customise the Website to compile management and information statistics and for billing purposes. You agree that we may do this and that you will be responsible for notifying and obtaining relevant consents from Authorised Users for us to do this prior to giving them a password and submitting their details to us.

12.2

Further details of our Privacy Policy are available on the Website and shall form part of this Agreement.

13

Responsibility for use

13.1

You shall ensure that your Personnel, agents and sub-contractors comply with your obligations under these provisions and for the purposes of clause 13.2 a reference to “you” shall include you, your Personnel, agents and sub-contractors.

13.2

You agree to fully and promptly indemnify and keep us indemnified against all liabilities, claims, losses, damages, demands, injuries, charges, fines, claims, proceedings, costs, and expenses (including legal expenses) that we may suffer or incur as a direct or indirect result of:

13.2.1

any claims or legal proceedings arising from your use of the Service, Website or Materials or use of the Service or Website through a password issued to you, which are brought or threatened against us by any person; or

13.2.2

any breach of this Agreement by you.

14

Termination

14.1

We may terminate this Agreement without cause at any time by giving 30 days' notice to you. If we terminate under this clause 14.1, we shall promptly refund to you a portion of the total Charges which you have paid to us under this Agreement. The portion to be refunded shall be the same percentage of the Charges as the following: the number of full months by which this Agreement is curtailed out of the total number of months for which this Agreement was due to last from beginning to end before it was terminated.

14.2

If you breach or permit a breach of the terms of the licence granted to you in this Agreement we may give you written notice immediately terminating this Agreement. You acknowledge that such a breach may cause us irreparable harm in respect of which it may be difficult for us to ascertain financial loss. Accordingly, in addition to any other rights that we have, you acknowledge that we shall be entitled to seek injunctive relief in respect of such breach.

14.3

Without prejudice to the other rights of termination expressed in this Agreement, either party may terminate this Agreement by written notice to the other if:

14.3.1

the other party is in material breach of any of its obligations under this Agreement which is incapable of remedy; or

14.3.2

the other party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement after having been required in writing to remedy such breach within a period of no less than 30 days; or

14.3.3

the other gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.

14.4

Immediately following termination you shall cease using any username and password in relation to the Website and cease using the Website, and, if we so require, delete or return as we direct from all computer hardware and storage media and otherwise destroy all copies of Materials (in any form or in any media) that we have made available or supplied to you. You shall warrant that you have done these acts within 30 days of termination. You shall also immediately pay to us any Charges and taxes that are outstanding.

14.5

Termination of this Agreement will be without prejudice to any other rights or remedies which you or we may be entitled to under this Agreement or at law and will not affect any accrued rights or liabilities of either you or us nor the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.

14.6

You acknowledge that wee reserve the right to terminate the Agreement immediately in the event of a breach of clause on the basis that this would be a material breach of your obligations which is incapable of remedy. You acknowledge that such a breach may cause us irreparable harm in respect of which it may be difficult for us to ascertain financial loss. Accordingly, in addition to any other rights that we have, you acknowledge that we shall be entitled to seek injunctive relief in respect of such breach.

15

Confidentiality

15.1

Neither party (the "receiving party") shall at any time whether before or after the termination of this Agreement except as required to perform its respective rights and obligations under this Agreement, use, copy, adapt, alter, disclose or part with possession of any information or data of or about the other (the "disclosing party") which is disclosed or otherwise comes into the receiving party's possession directly or indirectly as a result of this Agreement all of which information shall be deemed to be of a confidential nature whether marked confidential or not ("Confidential Information"). This obligation shall not apply to Confidential Information:

15.1.1

which the receiving party can prove was in its possession at the date it was received or obtained; or

15.1.2

which the receiving party obtains from some person with good legal title thereto other than from or on behalf of the disclosing party; or

15.1.3

which comes into the public domain otherwise than through the default or negligence of the receiving party; or

15.1.4

which is independently developed by or for the receiving party; or

15.1.5

which is required to be disclosed to the extent required by law, court order or a governmental agency.

15.2

You acknowledge that our provision of the Service may involve the disclosure to you of processes, operations and set-ups that contain proprietary information and Confidential Information ("Trade Secrets"). Notwithstanding the obligations of confidentiality on you under clause 15.1, you agree that, unless expressly permitted in writing by us, you will not use such Trade Secrets for your own purposes or provide or otherwise disclose or make any such Trade Secrets available for any reason to any other person, firm, company or organisation.

15.3

You shall ensure that your Personnel, agents and sub-contractors who have, or may have, access to our Confidential Information or to Trade Secrets are bound by an undertaking in substantially the same terms as those placed on you under this Agreement.

15.4

The obligations of confidentiality set out in this clause 15 shall continue after termination of this Agreement.

16

Publicity

16.1

Each party may publicise the existence of this relationship provided this is done in a fair and accurate way.

17

Limitation of liability

17.1

This clause 17 prevails over all other clauses in this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:

17.1.1

the performance, non-performance, purported performance or delay in performance of this Agreement or the Service or the Website (or any part of it or them); and

17.1.2

otherwise in relation to this Agreement or the entering into or performance of this Agreement.

17.2

Nothing in this Agreement shall exclude or limit our Liability for (i) our fraud (including our fraudulent misrepresentation); (ii) death or personal injury caused by our Breach of Duty; (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982; or (iv) any other Liability which cannot be excluded or limited by applicable law.

17.3

In performing any obligation under this Agreement, our only duty is to exercise reasonable care and skill.

17.4

We do not warrant and we exclude all Liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Service or the Website; and we exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature.

17.5

Save as provided in clause 17.2, we do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the terms of this Agreement.

17.6

Save as provided in clause 17.2, we shall have no Liability for any:

17.6.1

indirect or consequential losses, damages, costs or expenses

17.6.2

loss of actual or anticipated profits;

17.6.3

loss of contracts;

17.6.4

loss of the use of money;

17.6.5

loss of anticipated savings;

17.6.6

loss of revenue;

17.6.7

loss of goodwill;

17.6.8

loss of reputation;

17.6.9

loss of business;

17.6.10

loss of operation time;

17.6.11

loss of opportunity; or

17.6.12

loss of, damage to or corruption of data;

and any such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, clauses 17.6.2 to 17.6.12 inclusive apply whether such losses are direct, indirect, consequential or otherwise.

17.7

Save as provided in clause 17.2 and subject to the exclusions and limits set out in this Agreement, our total Liability to you shall, in respect of any one or more incidents, not exceed in aggregate a sum equal to the greater of: (a) £5,000; or (b) 110% of any aggregate amount paid by you to us in the 12 months preceding the date on which the incident occurs. We exclude all liability towards third parties.

17.8

The limitation of Liability under clause 17.7 has effect in relation to both any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.

17.9

The provisions of this clause 17 shall continue after the termination of this Agreement.

18

Assignment

18.1

You shall not assign, charge, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any right, benefit or interest under it nor transfer or sub-contract or purport to assign, transfer or sub-contract any of your rights or obligations under this Agreement without our prior written consent. We will not unreasonably withhold such consent.

18.2

We may assign, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any right, benefit or interest under it or transfer or sub-contract any of our rights or obligations under this Agreement to any of our subsidiary or affiliated companies, or to any other person as part of a merger, reorganisation or sale of our business or our assets.

19

Notices

19.1

Any notice required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to the other party’s registered office or as otherwise specified by the relevant party by notice in writing to the other party.

19.2

Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the address referred to in this clause 19; or (b) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting; or (c) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.

20

Force Majeure

20.1

We shall not be liable for any delay or failure to perform any obligation under this Agreement insofar as the performance of such obligations is prevented by an event or by matters beyond our reasonable control including act of God, actions of third parties (including hackers, suppliers, governments or supra-national authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, earthquake, natural disaster, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including electrical, telecoms or general Internet failure), shortage of or inability to obtain materials, failure of computer equipment, failures or delays of sources from which information or data is obtained) ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.

21

Miscellaneous

21.1

Except in respect of extensions to the Contract Period, this Agreement may only be varied if the variation is agreed in writing or by e-mail or other durable medium, in each case by a duly authorised representative of each party.

21.2

This Agreement constitutes the complete and exclusive statement of agreement and understanding between the parties which supersedes and excludes all prior or contemporaneous proposals, understandings, agreements or representations, whether oral or written, with respect to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.

21.3

You acknowledge that no representations were made prior to the entering into of this Agreement and that, in entering into this Agreement, you do not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out or referred to in this Agreement.

21.4

For the avoidance of doubt and as set out in clause 17.2, nothing in this Agreement shall exclude or limit our Liability for fraudulent misrepresentations or shall exclude (but this Agreement does limit) our Liability for any fundamental misrepresentation, including any misrepresentation as to a matter fundamental to our ability to perform our obligations under this Agreement, on our part.

21.5

Unless a party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that party's other powers, rights or remedies under this Agreement or at law.

21.6

If any clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.

21.7

This Agreement does not and is not intended to confer any rights to any third party. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

21.8

All dealings, correspondence and contacts between us shall be made or conducted in the English language, unless we agree expressly or by our conduct to deal, correspond or contact with you in another particular language.

21.9

Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.

21.10

We shall keep a record of this Agreement until six years after we have accepted it. However, for your future reference, we advise and recommend that you print and keep a copy of this Agreement and keep it for your future reference.

21.11

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including, in any of the foregoing areas, non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.

21.12

The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including, in any of the foregoing areas, non-contractual disputes or claims).

Version: V001 July 2011

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