- Thovex Limited is incorporated and registered in England and Wales with company number 11941259 whose registered office is at Unit 3 Priory Court, Poulton, Cirencester, United Kingdom, GL7 5JB (“Thovex”).
- Thovex has developed and provides a service consisting of internet access to application software via the cloud for the purposes of providing and interrogating planning and development data via a web-based portal (“Landstack”).
- Thovex’s customers wish to use the Subscription Services as part of their business operations.
- Thovex agrees to provide the Services via the Landstack WebApp subject to and in accordance with these Conditions.
- In these Conditions: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to Thovex or Customer includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including or include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing or written includes emails but excludes faxes; (vi) the terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Law; and (vii) the following definitions apply:
|Affiliates||each employee, contractor or sub-contractor of a party or the party's Group.|
|Applicable Law||the laws of England and Wales, together with any other mandatory laws, regulations, regulatory policies, guidelines or industry codes which apply to the performance of each party’s obligations under the Contract.|
|Authorised Users||those employees and independent contractors of the Customer who are concurrently entitled to use the Subscription Services under the Contract.|
|Availability||the availability of an access point on Thovex’s hosting provider's backbone network, subject to clause 6.8.|
|Business Day||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|Charges||the charges payable by the Customer to Thovex, as set out in the Order.|
|Confidential Information||information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure.|
|Contract||each contract (as defined in clause 3.1) between the Customer and Thovex relating to the supply of Services.|
|Customer Data||the data inputted into the information fields of the Subscription Software by the Customer, by Authorised Users, or by Thovex on the Customer’s behalf.|
|Customer Obligations||the obligations described in clause 4.|
|Customer Personnel||employees, directors and agents of the Customer, together with employees, directors and agents of any contractor undertaking activities on behalf of the Customer who are not Thovex Personnel.|
|Data License||the licence granted by Thovex to the Customer in respect of Data Source(s), the terms of which are located here as updated from time to time.|
|Data Processing Particulars||the following details, as provided in the Order: (i) the subject matter, duration, nature and purpose of the processing; (ii) the type of personal data being processed; and (iii) the categories of Data Subjects.|
|Data Protection Legislation||any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the processing of their personal data to which a party is subject, including the DPA and the GDPR (to the extent it remains applicable) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.|
|Data Source||a third-party source of Landstack Data.|
|Data Subject||has the meaning set out in the Data Protection Legislation.|
|Default||any act or omission of a party, or failure by a party to perform a relevant obligation under a Contract.|
|Defect||an error in the applicable software that causes it to fail to operate materially in accordance with its Documentation.|
|Documentation||the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Thovex or made available by Thovex to the Customer via the Landstack WebApp. These can be found here.|
|DPA||the Data Protection Act 2018.|
|Effective Date||the date specified in the Order, or if none is specified, the date upon which Thovex receives its first payment in consideration for granting the Customer access to the Subscription Services.|
|Group||each and every entity that directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such control exists. In the case of companies and corporations, control means beneficial ownership of more than 50% of the voting stock, shares, interest or equity in an entity; in the case of any other legal entity, “control” and “controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity.|
|GDPR||Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016, together with any implementation of the above into UK law. Any reference to “articles” are references to the GDPR.|
|Insolvency Event||(a) the Reseller 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 under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the above applies; (b) the Reseller starts negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for/enters into any arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for/in connection with the winding up of the Reseller; (d) the Reseller is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Reseller attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed over the Reseller; (g) a floating charge holder over the assets of the Reseller becomes entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Reseller or a receiver is appointed over the assets of the Reseller; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.|
|Intellectual Property Rights||patents, utility models, rights to inventions, copyright and related 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, rights in designs, 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.|
|Landstack Data||any data provided by a Data Source and made available to the Customer via the Subscription Services.|
|Landstack WebApp||the web portal through which the Authorised Users can access the Subscription Services.|
|Maintenance Services||the Maintenance Services described in the Maintenance Services Specification, or any other specification referred to in the Order.|
|Maintenance Services Specification||the document located here as updated from time to time.|
|Normal Business Hours||[9.00am to 5.00pm] UK time, each Business Day.|
|Order||Customer’s agreement to the terms of a Quotation, which may include a communication from the Customer to Thovex (whether via the Landstack WebApp or otherwise) within the period for which the Quotation remains valid.|
|Order Acceptance||acceptance by Thovex of an Order, which shall consist of a communication from Thovex to the Customer expressly accepting the Order.|
|Permitted Purpose||the purpose of the data processing as set out in more detail in the Data Processing Particulars.|
|Permitted Subscription Maintenance Event||has the meaning ascribed to it in the Maintenance Services Specification.|
|Planned Maintenance||has the meaning ascribed to it in the Maintenance Services Specification.|
|Quotation||a communication from Thovex acknowledging a Request for Services, setting out relevant details (including Charges) in respect of requested Data Sources.|
|Request for Services||a request for Thovex to provide Services in accordance with these Conditions made by a Customer or perspective Customer in writing, including via Thovex’s website.|
|Rights Request||an actual or purported request by a Data Subject to exercise their rights of: (i) access; (ii) rectification; (iii) erasure; (iv) restriction of processing; (v) data portability; or (vi) objection, as set out in articles 15-21 of the GDPR, or any rights analogous thereto as may be enshrined in the Data Protection Laws from time to time.|
|Security Requirements||the requirements regarding the security of the personal data, as set out in the Data Protection Legislation (including, in particular, the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR) as applicable.|
|Services||the Maintenance Services, the Subscription Services, and any other services to be supplied directly by Thovex to the Customer, as specified in the Order.|
|Sourcing Issue||an inability on the part of Thovex to source particular materials or resources (including Thovex Personnel and Data Sources) on terms similar or identical to those available at the Effective Date (including due to exchange rate fluctuations, increases in taxes or duties) or a change in Applicable Law.|
|Standard Rates||Thovex’s standard rates for the Thovex Services as made available by Thovex from time to time.|
|Subscription Services||the making available by Thovex to Customer of access to the Subscription Software via the Landstack WebApp.|
|Subscription Service Charges||the charges set out or referred to in the Order for the provision of the Services.|
|Subscription Software||the interface accessible via www.landstack.co.uk or any other address as notified to the Customer from time to time.|
|Term||the period described as such in clause 14.1.|
|Third Party||a person other than Thovex Personnel or the Customer.|
|Third Party Suppliers||any third party supplier used by Thovex in the provision of the Services including, but not limited to: Microsoft (Bing Maps), Her Majesty’s Land Registry, Ordnance Survey, Natural England, Environment Agency and Royal Mail.|
|Thovex Personnel||Thovex’s employees, directors and agents, together with employees, directors and agents of any contractor undertaking activities on behalf of Thovex in relation to the performance of its obligations under the applicable Contract.|
|Virus||any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.|
|Year||the period of 12 calendar months from the Effective Date and each 12 calendar month period thereafter.|
Basis of Contract
- The Customer may submit a Request for Services at any time, which shall constitute an invitation to treat by the Customer.
- Each Quotation constitutes an offer by Thovex to provide Services, such offer being valid only for 20 Business Days from its date of issue.
- Upon agreement by the Customer to the terms of a Quotation, an Order shall come into existence which Thovex is free to accept or reject.
- Following receipt of an Order, Thovex shall at its option submit an Order Acceptance to the Customer, at which time, either:
- where the Customer is not already subscribed to one or more Data Sources via the Subscription Services, a Contract shall come into existence, subject to the terms of the applicable Quotation and these Conditions (“Contract”). The Contract shall come into existence immediately following the Effective Date; or
- where Thovex is already providing Subscription Services to the Customer under a Contract, the existing Contract shall be varied to take account of the new Data Sources which Thovex has agreed to provide pursuant to the relevant Quotation.
- Any Contract between Thovex and the Customer shall not prevent Thovex from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under the Contract.
- The documents making up the Contract shall, to the extent permitted by law, govern the supply of the Services to the exclusion of all other terms and conditions (whether express or implied) and any other terms and conditions the Customer purports to apply (whether now or in the future) will be ineffective and the Customer waives all its rights to rely on any other terms.
- After the Effective Date, a Contract may not be terminated except in accordance with its terms.
- If there is an inconsistency between any of the provisions of a Contract, the following descending order of priority shall apply: (i) the Order itself; (ii) any subsequent variation of the Contract to take account of new Data Sources and then (iii) these Conditions.
- Each party warrants that: (i) it has full capacity to enter into and perform its obligations under a Contract; and (ii) each Contract is executed by a duly authorised representative of that party.
- In consideration for the payment of the Charges, Thovex will provide the Services in accordance with the Contract from the Effective Date.
- The Customer shall:
- provide Thovex with:
- all necessary co-operation in relation to a Contract; and
- all necessary access to such information as may be required by Thovex; in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other business applications;
- comply with any and all obligations set out in the Data Licence(s) in respect of the Data Sources to which the Customer has purchased access from Thovex from time to time;
- comply with any other obligations which are apparent or would be ordinarily expected to be complied with by the Customer in the ordinary course of receipt of similar services;
- only use the Services for lawful purposes and shall not use the Services: (i) in any way that breaches any Applicable Law; (ii) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) for the purpose of harming or attempting to harm minors in any way; (iv) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in clause 4.2; (v) transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); (vi) knowingly transmit any data, send or upload any material that contains Harmful Code; and (vii) not (and shall not attempt to) probe, scan, penetrate or test the vulnerability of any of Thovex’s systems or networks or to breach any of Thovex’s security or authentication measures, whether by passive or intrusive techniques, without Thovex’ prior written consent;
- provide such assistance from the Customer Personnel as may be reasonably requested by Thovex from time to time;
- ensure that the terms of each Contract are complete and accurate;
- respond promptly to any request for a decision, guidance, information or instruction which Thovex may submit in relation to a Contract from time to time;
- not do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of Thovex;
- ensure that there are in place all necessary consents, licences and permissions required to permit Thovex to access and use all the Customer Data solely for purposes connected with the relevant Contract; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Landstack WebApp.
- provide Thovex with:
- The content standards are as follows.
- Content must: (i) be accurate (where they state facts); (ii) be genuinely held (where they state opinions); and (iii) comply with Applicable Law.
- Content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful or otherwise inflammatory; (ii) promote sexually explicit material; (iii) promote violence; (iv) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (v) be used to impersonate any person, or to misrepresent your identity or affiliation with any person; (vi) infringe the copyright, database right or trade mark of any other person; (vii) give the impression that they emanate from Thovex, if this is not the case; or (viii) advocate, promote or assist any unlawful act.
- Thovex agrees to supply the Services in accordance with the Order during the Term and in consideration for the Payment of all applicable Charges.
- The Customer is responsible for ensuring that the details stated in the Quotation meet the Customer’s requirements, and that the details within the Quotation are complete and accurate. No Order submitted by the Customer shall be deemed to be accepted by Thovex unless and until confirmed by Thovex in an order Acceptance.
- In respect of the Services, Thovex shall use reasonable endeavours to meet any performance dates specified in the Order, but any such dates are estimates only and time is not of the essence for the performance of the Services.
- If performance of the Services is delayed at the request of the Customer, or because of any acts or omissions of the Customer, the parties may agree revised dates for performance. At its discretion, Thovex may apply a reasonable increase to the Charges as a result of such delay.
- Thovex shall have the right to make any changes to the Services which: (i) improve the nature or quality of the same; (ii) are necessary to comply with Applicable Law; (iii) result from a Sourcing Issue; or (iv) do not materially negatively affect the nature or quality of the Services, and Thovex shall notify the Customer in any such event. Such notification shall include any variations to the Charges which Thovex reasonably considers to be necessary in light thereof.
- Where there is a Default on the part of the Customer, Thovex (without limiting its other rights or remedies) may suspend performance (and is relieved from its performance obligations) until the Customer remedies the same. The Customer shall be liable for any costs incurred by Thovex.
- With respect to the Subscription Services, the terms of this clause apply.
- Subscription Software:
- "Use” of the Subscription Software means accessing the same from a remote location via the Landstack WebApp, solely in accordance with the Documentation.
- The Customer acknowledges that backup copies of the Subscription Software are not required, as no local installation of the same will occur.
- The Customer's access to the Landstack WebApp shall be limited to the Customer, the Customer’s employees and agents.
- The Customer shall ensure that each Authorised User keeps a secure password for his use of the Subscription Software, that such password is changed no less frequently than monthly and that each Authorised User keeps his password confidential.
- Except as expressly licensed, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the Subscription Software in order to build a product or service which competes with the same, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.
- Thovex shall use commercially reasonable endeavours to make the Subscription Services available 24 hours a day, seven days a week.
- Thovex does not warrant that:
- the Customer’s use of the Subscription Services will be uninterrupted or error-free; or
- the Customer’s access to the Customer Data will be uninterrupted or error-free.
- The following shall not reduce Availability: (i) availability of the portion of the circuit that does not transit Thovex’s backbone network, as the Customer is responsible for its own internet access; (ii) Permitted Subscription Maintenance Events; (iii) Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by Thovex to perform the Subscription Services); and (iv) outages or disruptions attributable in whole or in part to Force Majeure Events.
- Thovex reserves the right to modify the Subscription Services in any manner which: (i) is necessary to comply with any Applicable Law or safety requirement; (ii) results from a Sourcing Issue; (iii) does not materially affect the nature or quality of the same; or (iv) pursuant to an update to a Data Licence, as mandated by one of Thovex’s Data Sources, and Thovex shall notify the Customer in any such event.
- Thovex shall use reasonable commercial efforts to make regular back-ups of Customer Data. However, it is the Customer’s responsibility to ensure Customer Data is appropriately backed-up.
- The terms of this clause 7 apply where the Customer orders Training Services from Thovex.
- The Customer acknowledges and agrees that any materials provided in respect of Training Services are licensed to the Customer solely for the purposes of the receipt of such Training Services by the Customer Personnel, unless and to the extent that wider use by other Customer Personnel is expressly permitted in writing.
- The price for Services is the price set out in the Order. Where no price is quoted, it shall be the price set out in Thovex’s published price list as at the date on which Thovex sends out the relevant Order Acceptance.
- Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall become payable upon production of appropriate receipts.
- If it is reasonably apparent that any of the pricing in the Order is incorrect (“Obvious Pricing Error”), the Customer must notify Thovex of the same. When Thovex becomes aware of an Obvious Pricing Error, it shall promptly notify the Customer of the error together with the correct price (“Correct Price”). Following notification of the Correct Price, such price shall apply in place of the Obvious Pricing Error. If the Customer objects to the Correct Price, it may terminate the relevant Contract on written notice to Thovex.
- Where a failure of the Customer to comply with its obligations in the Contract results in additional costs for Thovex and/or wasted time, Thovex may charge the Customer for the same on a time and materials basis. In order to calculate the same, Thovex’s Standard Rates shall apply.
- The Customer shall pay each invoice which is properly due and submitted to it by Thovex within 30 days of invoice date, to a bank account nominated in writing by Thovex. If Thovex has not received a payment which is validly due within such period, and without prejudice to any other rights and remedies it may have (but subject to any Applicable Law in force at the time which restricts or excludes the same), Thovex may charge interest on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Lloyds Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. Such interest shall accrue on a daily basis and be compounded quarterly.
- All Charges stated or referred to in a Contract are exclusive of value added tax or other sales taxes, which shall be added to Thovex’s invoice(s) at the appropriate rate;
- Thovex may, without limiting its other rights or remedies, set off any amount owing to it by the Customer or any Affiliate against any amount payable by Thovex to the Customer.
- Thovex warrants that it has, and will continue to have, all necessary rights in and to any and all Intellectual Property Rights that it purports to grant to the Customer pursuant to a Contract. The Customer warrants to Thovex that Thovex's possession and use in accordance with this agreement of any materials (including third-party materials supplied by the Customer to Thovex) shall not cause Thovex to infringe the rights, including any Intellectual Property Rights, of any third party.
- The Customer acknowledges and agrees that Thovex and/or its licensors own all Intellectual Property Rights in the Subscription Software and Training Services.
- Except as expressly stated herein, these Conditions do not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Services, Subscription Software or any data provided by a Data Source.
- Thovex acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Data. Except as expressly stated herein or as is necessary to perform Thovex’s obligations under a Contract, these Conditions do not grant Thovex any Intellectual Property Rights or any other rights or licences to or in respect of any Customer Data.
- Nothing in these Conditions shall be construed so as to prevent Thovex from using in the furtherance of its own business general know-how or expertise gained in its performance of a Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 10 or infringement of any Intellectual Property Rights.
- Each party may be given access to Confidential Information from the other party, any member of its Group or any of its Affiliates in order to perform its obligations under a Contract. A party's Confidential Information shall not include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 10.4 below, each party shall hold the other's Confidential Information (including any such information originating from any of its Affiliates or any other member of its Group) in confidence and, unless required by law, 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 performance of its obligations under a Contract.
- Each 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 these Conditions, save to other members of its Group, its Affiliates, or its professional advisors.
- A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any unconnected third party.
- Thovex acknowledges that the Customer Data is the Confidential Information of the Customer.
- Thovex may publicise its involvement with the Customer for its own marketing purposes, and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this clause 10.
- Thovex may compile, collect, copy, modify, publish and use anonymous data in aggregate form that is generated from, or based upon, Customer’s use of the Subscription Services (“Aggregate Data”); provided that:
- Aggregate Data does not include Customer Data or any of the Customer's Confidential Information;
- Aggregate Data does not include any information that can be used directly, or in connection with other data, to identify, contact or locate an individual;
- Aggregate Data is combined with data from other customers and cannot be used to identify, directly or indirectly, the Customer; and
- Thovex uses Aggregate Data solely for data analytics, statistical reporting, or other lawful business purposes.
Data Protection Arrangements
- The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Legislation. However, the parties anticipate that the Customer shall act as a Controller and Thovex shall act as a processor and in any such case:
- Thovex shall be a Controller where it is collecting and using personal data in relation to the management of its Customer accounts; and
- Thovex shall be a processor where it is processing personal data in relation to the Data Processing Particulars in connection with performing its obligations under a Contract.
- Thovex shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all personal data that is processed by it in connection with a Contract.
- Thovex shall be permitted to appoint sub-contractors, and to disclose personal data to them for processing in accordance with the relevant Contract, provided always that the sub-contractor's right to process the personal data terminates automatically on expiry or termination (for whatever reason) of the relevant Contract for which the sub-contractor was engaged.
Data Processing Obligations
- To the extent that Thovex is acting as a processor for and on behalf of the Customer, it shall:
- process personal data for and on behalf of the Customer for the purposes of performing its obligations under a Contract, and only in accordance with the terms of that Contract and any documented instructions from the Customer;
- notify the Customer without undue delay upon becoming aware that any of the Customer's written instructions infringe the Data Protection Legislation;
- implement and maintain appropriate technical and organisational security measures which are sufficient to comply with at least the obligations imposed on the Customer by the Security Requirements;
- take all reasonable steps to ensure the reliability and integrity of any Thovex Personnel who shall have access to the personal data;
- ensure that access to the personal data is restricted to only those members of Thovex’s Personnel who require it in order to discharge Thovex’s obligations under a Contract;
- notify the Customer promptly following its receipt of any Rights Request or correspondence from the UK Information Commissioner's Office or any other European data protection authority, and together with such notices, shall provide a copy of such Rights Request or correspondence and reasonable details of the circumstances giving rise to it; and
- with respect to a Subject Access Request, not disclose any personal data in response without the express written authorisation of the Customer.
- Where Thovex becomes aware (or reasonably should have become aware) of an actual or suspected personal data breach, it shall:
- notify the Customer as soon as is practicable, including details of how the breach occurred and what personal data may have been compromised;
- implement any measures necessary to restore the security of compromised personal data; and
- assist the Customer to make any notifications to the UK Information Commissioner’s Office and affected Data Subjects.
- Except to the extent required by Applicable Law, upon the termination of a Contract for any reason, or earlier if instructed in writing by the Customer to do so, Thovex shall cease processing all personal data and return and/or permanently and securely destroy so that it is no longer retrievable (as directed in writing by the Customer) all personal data and all copies in its possession or control (and it shall provide the Customer with a certificate signed by a duly authorised representative confirming it has done so). Where the Customer makes any such request prior to the termination of a Contract, and it serves to hinder or prevent Thovex’s obligations thereunder, the Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.
Warranties, Indemnities & Limitation of Liability
- All representations or warranties (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in these Conditions are hereby excluded. In particular, but without prejudice to the generality of the foregoing, Thovex makes no representation or gives any warranty (whether express or implied, statutory and/or otherwise), and will have no liability, regarding the fitness of the Services or the accuracy of any Data for any purpose, whether or not such purpose is disclosed to Thovex.
- The Customer hereby indemnifies Thovex from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Thovex in connection with:
- Thovex’s storage/handling of any Customer Data and the Customer’s use of the same through the Subscription Services;
- any failure of the Customer to obtain appropriate licences and/or consents in accordance with its obligations under these Conditions or any subsequent revocation or non-renewal of any such licence and/or permit;
- any failure of the Customer to ensure its compliance with Applicable Law in accordance with its obligations under these Conditions;
- any use of the Services by the Customer other than as envisaged under the Contract;
- the Customer's breach of any Data Licence; and
- any other Customer Default.
- Thovex shall defend the Customer, its officers, directors and employees against any claim that the Subscription Software infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts finally awarded against them in judgment or settlement of such claims, provided that:
- Thovex is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to Thovex in the defence and settlement of such claim (at Thovex’s expense, provided such expenses are reasonable and can be evidenced to Thovex’s satisfaction); and
- Thovex is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, Thovex may procure the right for the Customer to continue using the Subscription Software, replace or modify the Subscription Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the 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. In no event shall Thovex, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Subscription Software by anyone other than Thovex; (b) the Customer's use of the Subscription Software in a manner contrary to the instructions given to the Customer by Thovex; or (c) the Customer's use of the Subscription Software after notice of the alleged or actual infringement from Thovex or any appropriate authority. The foregoing states the Customer's sole and exclusive rights and remedies, and Thovex’s (including its employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- The following provisions set out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of:
- any breach of these Conditions howsoever arising; and
- any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with a Contract.
- Nothing in these Conditions shall limit or exclude Thovex’s or the Customer’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
- fraud or fraudulent misrepresentation; or
- any other liability which cannot be limited or excluded by Applicable Law.
- Subject to clauses 13.5 and 13.6, Thovex’s liability in respect of loss or damage under a Contract in any 12 month period shall not exceed the lower of:
- a sum equal to the total Charges paid and payable to Thovex by the Customer under such Contract during the period of 12 months immediately prior to the event giving rise to the claim, or
- £100,000, however that liability arises including breach of contract, tort, misrepresentation or breach of statutory duty.
- Subject to clause 13.5, in no event will Thovex be liable to the Customer (whether in contract, tort, negligence or otherwise):
- for any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by a Force Majeure Event or any Client Default;
- for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission;
- for any loss of profit, revenue, use, anticipated savings, data, goodwill or opportunity or damage to reputation;
- for any indirect, special or consequential loss or damage;
- to the extent that any delay in performing or failure to perform Thovex’s obligations is due to a failure by the Customer to perform its own obligations under a Contract or if delay results from a failure by the Customer to comply with reasonable requests by Thovex for instructions, information or action required by it to perform its obligations within a reasonable time; or
- for the consequences of any acts or omissions of the Customer or the Customer Personnel.
- In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Thovex to use reasonable commercial endeavours to restore the same from its latest back-up maintained by Thovex.
- In no event shall Thovex be liable for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Thovex to perform services related to maintenance and back-up).
Term and Termination
- Each Contract shall commence on the Effective Date and continue for the duration stated in the relevant Order (the “Term”) unless terminated in accordance with its terms.
- Without prejudicing any other right or remedy available to it, either party may terminate the relevant Contract with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of the Contract which breach is irremediable or (if remediable) fails to remedy it within a period of 10 Business Days after being notified in writing to do so (this clause 14.2.2 only applies if Service Credits are not applicable); or
- the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms under the Contract.
- Without prejudicing any other right or remedy available to it, Thovex may terminate any Contract should an Insolvency Event occur.
- Without prejudicing any other right or remedy available to it, Thovex may terminate any Contract with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
- Without prejudicing any right to terminate which Thovex may have, Thovex will be entitled to suspend any Services without notice if:
- there is a Default on the part of the Customer; or
- any of the events set out in clauses 14.2, 14.3 or 14.5 occur in relation to the Customer.
- Thovex may rely on the suspension to relieve it from the performance of any of its obligations in each case to the extent the suspension prevents or delays the performance by Thovex of any of its obligations and Thovex shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from any failure or delay by Thovex to perform any of its obligations as set out in this clause.
- Where Thovex acquires the right to terminate or suspend Services under a Contract pursuant to this clause 14, such right shall extend to any other Contracts concluded between the parties incorporating these Conditions, whether prior or subsequent to the Contract under which the right of termination or suspension has arisen.
- The Customer may terminate the Contract immediately if there is a Manifest Pricing Error as detailed in clause 8.3.
Consequences of Termination
- On termination for any reason:
- all rights granted to the Customer under the Contract shall cease;
- the Customer shall cease all activities authorised by the Contract; and
- the Customer shall immediately pay any sums due to Thovex (including sums on a time and materials basis for any work in progress) without set off or deduction.
- Subject to Thovex’s obligations with respect to any other Contract which remains in force:
- each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party; and
- provided all sums due to Thovex’s Group from Customer’s Group have been paid, Thovex shall make available to the Customer a copy of all Customer Data in a commonly-readable electronic format for a period of no more than 6 days following termination. After such period, Thovex may permanently delete all Customer Data residing on its systems.
- The Customer may not freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Contract without the consent of Thovex, such consent not to be unreasonably withheld or delayed.
- Thovex may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Contract without the prior written consent of the Customer.
- The Customer agrees that it shall co-operate and undertake all matters at Thovex’s cost and expense that are necessary to novate or assign any Contract or any parts thereof to any third party when requested to do so by the Customer.
- Neither party shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under that Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes; lock-outs or other industrial disputes (except with respect to that party's own employees); acts of God; war; riot; civil commotion; compliance with any law or governmental order, rule, regulation or direction; accident; fire, flood, or storm. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 2 months, the party not affected may terminate the relevant contract (together with any other Contract between the parties) by giving 10 Business Days' written notice to the other party.
- A notice given pursuant to the Contract shall be in writing, addressed to the place of business of the relevant party and shall be: (i) delivered personally; (ii) sent by e-mail; or (iii) sent by pre-paid special delivery.
- A notice is deemed to have been received:
- if delivered personally, at the time of delivery;
- in the case of e-mail, at the time of transmission, provided a delivery notification is obtained evidencing delivery of the email; and
- in the case of special delivery, the date on which delivery takes place, as evidenced by the acknowledgement from the Royal Mail, provided that, if receipt is not within Normal Business Hours on a Business Day, delivery shall be deemed to be when business next starts in the place of receipt.
- If a dispute arises out of or in connection with these Conditions or the performance, validity or enforceability of a Contract (a “Dispute”) then the parties shall follow the procedure set out in this clause 19:
- either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and
- if the parties are for any reason unable to resolve the Dispute within 20 Business Days from service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 10 Business Days after the date of the ADR Notice.
- If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence Court proceedings, but provided that nothing in this clause 19.2 shall prevent either party from either continuing with any means of alternative dispute resolution as may be agreed in writing from time to time, or seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.
- A natural or legal person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. This clause does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
- Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Thovex.
- A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or Default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- The construction, validity and performance of each Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.
- No delay or omission by the Customer in exercising any of its rights or remedies under a Contract or under any Applicable Law on any occasion shall be deemed a waiver of, or bar to, the exercise of such right or remedy or any other right or remedy upon any other occasion.
- In the event that any provision of a Contract shall be void or unenforceable by reason of any provision of Applicable Law, it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the original intent of the Contract so far as possible.
- Nothing in a Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
- Each party undertakes to the other that it will not, and will procure that its employees will not, in the course of performing its obligations under a Contract, knowingly engage in any activity which would constitute a breach of the Bribery Act 2010.