Intersoft Services Agreement
- Introduction
- Service Level Agreement
- End User Licence Agreement
- User Acceptance Testing Procedure
- Royal Mail Services Addendum
- Data Transfer Agreement
- EU Standard Contractual Clauses
- International Data Transfer Addendum
- Privacy Policy
- Intersoft Services Agreement
- Underlying Services Terms and Conditions
Intersoft Services Agreement
Terms and Conditions
Version 1, 13 June 2023
Please read the terms and conditions carefully. All contracts that Intersoft may enter into from time to time for the provision of the Intersoft Services and related services shall be governed by these terms and conditions.
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Please read the terms and conditions carefully. All contracts that Intersoft may enter into from time to time for the provision of the Intersoft Services and related services shall be governed by these terms and conditions.
- Definitions
1.1 In the Agreement, except to the extent expressly provided otherwise:
"Account" means an account enabling a person or system to access and use the Intersoft Services by means of the GUI and/or the API;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means a contract between the parties incorporating the Agreement Documentation, along with any amendments to that contract from time to time;
"Agreement Documentation" means:
(a) the Services Order Form;
(b) these terms and conditions; and
(c) insofar as each is applicable: the SLA, the Royal Mail Services Addendum, the Underlying Services T&Cs, the DTA and the standard clauses for international transfers referenced in the DTA;
"Agreement Period" means:
(a) a period beginning on the Effective Date and ending on the first anniversary of the Services Start Date; or
(b) any period of 12 months beginning at the end of a previous Agreement Period,
in each case to the extent that those periods are within the Term;
"API" means:
(a) the shipping-related application programming interface for the Intersoft Services; and
(b) any other application programming interface for the Intersoft Services to be made available by Intersoft under the Agreement;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Carriers" means those delivery services providers with respect to which the Intersoft Services are available from time to time (as specified by Intersoft through the Intersoft Services or agreed in the Services Order Form);
"Charges" means:
(a) the charges and fees specified in the Services Order Form or elsewhere in the Agreement; and
(b) such other charges and fees as may be agreed in writing by the parties from time to time;
"Confidential Information" means the Intersoft Confidential Information and the Customer Confidential Information;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer" means the person or entity identified as such in the Services Order Form;
"Customer Application" means the software application(s) of the Customer that interact(s) with the Intersoft Services;
"Customer-Arranged Services" means any services provided by a third party, under a separate contract or arrangement between the Customer and the relevant third party, that that may transmit data to and/or from the Intersoft Services – including the services of all Carriers;
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to Intersoft at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential" or "in commercial confidence"; or
(ii) should have been reasonably understood by Intersoft to be confidential;
(b) the Customer Data;
(c) the Customer Personal Data; and
(d) access credentials and pricing information relating to the Customer's accounts with Carriers and other Customer-Arranged Services providers;
"Customer Data" means all data uploaded to or stored on the Platform by the Customer, or supplied by the Customer to Intersoft for uploading to or storage on the Platform;
"Customer Indemnity Event" has the meaning given to it in Clause 13.3;
"Customer Personal Data" means any Personal Data that is processed by Intersoft on behalf of the Customer in relation to the Agreement;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable to Customer Personal Data, the UK Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);
"Defect" means a defect, error or bug in the Platform having a material adverse effect on the functionality, security or performance of the Intersoft Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Intersoft Services;
(b) any use of the Platform or Intersoft Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
(d) an incompatibility between the Platform or Intersoft Services and any other system, network, application, program, hardware or software not specified as compatible in the Services Order Form;
"Documentation" means the documentation for the Intersoft Services produced by Intersoft and made available by Intersoft to the Customer;
"DTA" means the data transfer agreement available at https://contract.intersoft.co.uk/data-transfer, in the form current upon the Effective Date subject to variations in accordance with the Agreement;
"Effective Date" means the date upon which the parties execute a digital or hard-copy Services Order Form;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, wars, epidemics and pandemics);
"GUI" means the web-based graphical user interface for the Intersoft Services defined and made available by Intersoft;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);
"Intersoft" means Intersoft Systems and Programming Ltd, a company incorporated in England and Wales (registration number 02825778) having its registered office at 185 Farringdon Rd, London, EC1A 1AA;
"Intersoft Confidential Information" means:
(a) any information disclosed by or on behalf of Intersoft to the Customer at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or "in commercial confidence", or should have been understood by the Customer (acting reasonably) to be confidential; and
(b) the financial terms of the Agreement;
"Intersoft Indemnity Event" has the meaning given to it in Clause 13.1;
"Intersoft Services" means those services provided by either Intersoft's Intelligent Shipper system or Intersoft's Sapient system, as specified in the Services Order Form, which will be made available by Intersoft to the Customer as a service via the internet in accordance with the Agreement;
"Permitted Purposes" means the configuration of the Intersoft Services and the permitted purposes identified in the Services Order Form;
"Personal Data" means data constituting personal data under any or all of the Data Protection Laws;
"Platform" means the platform managed by Intersoft and used by Intersoft to provide the Intersoft Services, including the application and database software for the Intersoft Services, the system and server software used to provide the Intersoft Services, and the computer hardware on which that application, database, system and server software is installed;
"PUDO API" means Intersoft's "pick up, drop off" application programming interface for the Platform;
"Royal Mail Services Addendum" means the Royal Mail services addendum available at https://contract.intersoft.co.uk/royal-mail-services-addendum, in the form current upon the Effective Date subject to variations in accordance with the Agreement;
"Services" means any services that Intersoft provides to the Customer, or has an obligation to provide to the Customer, under the Agreement;
"Services Order Form" means a hard-copy or digital order form signed or otherwise agreed by or on behalf of each party, in each case incorporating the other elements of the Agreement Documentation by reference;
"Services Start Date" has the meaning given to it in the Services Order Form;
"Set Up Services" means the configuration, implementation and integration of the Intersoft Services in accordance with the Services Order Form;
“Shipping Account” means a person, natural or legal, that contracts with the Customer for the provision of services with respect to one or more Shipping Locations, where those services are provided using or enabled by the Intersoft Services;
“Shipping Locations” means the locations configured by the Customer or Intersoft for the shipping of packages by means of the GUI and/or API;
"SLA" means the service level agreement available at https://contract.intersoft.co.uk/service-level-agreement, in the form current upon the Effective Date subject to variations in accordance with the Agreement;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Google Chrome or Apple Safari, or any other web browser that Intersoft agrees in writing shall be supported;
"Support Hours" means the periods specified in the Services Order Form for the provision of Support Services (which are dependent upon the Customer's Support Services package);
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Intersoft Services;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Tracking Data" means the data collected by Intersoft from Carriers concerning the tracking of parcels sent using the Intersoft Services, including delivery progress data but excluding tracking ID numbers;
"Transaction" means a shipment made using the Intersoft Services;
"Underlying Services" those services incorporated into the Intersoft Services that are provided by a third party engaged by Intersoft (excluding all Customer-Arranged Services); and
"Underlying Services T&Cs" means the terms and conditions relating to Underlying Services that are available at https://contract.intersoft.co.uk/underlying-services-terms-and-conditions.
- Term
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 16 or any other provision of the Agreement.
- Account creation and Set Up Services
3.1 Intersoft shall create an Account for the Customer and shall provide to the Customer login details for that Account:
(a) if Intersoft has agreed in the Services Order Form to provide Set Up Services, upon or promptly following the completion of those Set Up Services;
(b) otherwise, upon or promptly following the Effective Date.
3.2 If Intersoft has agreed in the Services Order Form to provide Set Up Services to the Customer:
(a) Intersoft shall use reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in the Services Order Form;
(b) the Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 14.1 Intersoft will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under the Agreement; and
(c) subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by Intersoft shall be the exclusive property of Intersoft.
3.3 Unless Intersoft has agreed otherwise in the Services Order Form, the Customer shall be responsible for integrating the Customer Application with the Intersoft Services. Intersoft shall provide the Customer with reasonable assistance in relation to such integration.
3.4 The Customer acknowledges that Customer-Arranged Services may only be available through the API upon the successful completion of integration and testing of the relevant Customer-Arranged Services.
3.5 The Customer must provide Intersoft with such testing data as Intersoft may require before the activation of the Intersoft Services and before the activation of any Customer-Arranged Services. The Customer acknowledges that some Carriers require the provision of testing data before live activation of the relevant Customer-Arranged Services. The Customer shall be responsible for producing such testing data.
- Intersoft Services
4.1 Intersoft hereby grants to the Customer a worldwide, non-exclusive licence to use the Intersoft Services by means of:
(a) the GUI, using a Supported Web Browser; and
(b) the API, using an integration with the Customer Application,
in each case using the access credentials supplied by Intersoft, for the Permitted Purposes, in accordance with the Documentation and during the Term only.
4.2 The licence granted by Intersoft to the Customer under Clause 4.1 is subject to the following limitations:
(a) the GUI may only be used by the officers, employees, agents and subcontractors of:
(i) the Customer;
(ii) any Affiliate of the Customer; and
(iii) if permitted by the Intersoft Services, any Shipping Account;
(b) the API may only be used by the Customer Application; and
(c) if the Customer uses any Underlying Services, the Customer agrees to the Underlying Services T&Cs; accordingly, when using Underlying Services by means of the Intersoft Services, the Customer must comply with the applicable provisions of the Underlying Services T&Cs.
4.3 Except to the extent expressly permitted in the Agreement or required by law on a non-excludable basis, the licence granted by Intersoft to the Customer under Clause 4.1 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Intersoft Services;
(b) the Customer must not permit any third party (other than Shipping Accounts specified in the Services Order Form or otherwise expressly permitted by the Intersoft Services) to access or use the Intersoft Services;
(c) the Customer must not use the Intersoft Services to provide services to third parties (other than Shipping Accounts specified in the Services Order Form or otherwise expressly permitted by the Intersoft Services);
(d) the Customer must not republish or redistribute any content or material from the Intersoft Services (excluding, for the avoidance of doubt, Customer Data);
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing, security testing or penetration testing on the Platform or Intersoft Services without the prior written consent of Intersoft.
4.4 The Customer must not use the Intersoft Services in any way that causes, or may cause, damage to the Intersoft Services or Platform or impairment of the availability or accessibility of the Intersoft Services.
4.5 The Customer must not use the Intersoft Services in any way that results in excessive use of Platform resources. The Customer acknowledges that, in order to maintain Platform performance, Intersoft may limit the use of the Platform by the Customer:
(a) in accordance with any resource restrictions set out in the Services Order Form; and
(b) in the event that the Customer's use of the Platform results in materially degraded Platform performance for other Platform users.
4.6 The Customer must not use the Intersoft Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.7 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account and API access credentials, to ensure that no unauthorised person may gain access to the Intersoft Services.
4.8 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.9 The parties acknowledge and agree that the SLA shall govern the availability of the Intersoft Services.
4.10 Intersoft shall provide the Support Services to the Customer during the Term with reasonable skill and care and in accordance with the SLA.
- Customer obligations
5.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to Intersoft, or procure for Intersoft, such co-operation, support and information as are reasonably necessary to enable Intersoft to perform its obligations under the Agreement.
5.2 If the Services include Carrier label generation, the Customer must ensure that, at the end of each Business Day when any relevant Transactions occurred, for all Carrier-generated labels, the Customer (and each relevant Shipping Account):
(a) triggers an end-of-day manifesting process to confirm daily transactions; and
(b) provides a copy of such manifest to the Carrier.
5.3 This Clause 5.3 shall apply if Intersoft provides Tracking Data to the Customer under the Agreement. Where this Clause 5.3 applies, then save to the extent expressly provided otherwise in the Services Order Form:
(a) Intersoft shall supply the Tracking Data by such secure means as Intersoft may from time to time determine in its sole discretion;
(b) the Customer must download the Tracking Data on a daily basis;
(c) the Customer must only use the Tracking Data for the purposes of generating management information and reporting and informing addressees of the progress of shipments or enabling a relevant Shipping Account to do so;
(d) the Customer may only disclose the Tracking Data to any relevant Shipping Account, to any relevant addressee and to any person expressly approved in the Services Order Form (and must not disclose the Tracking Data to any other person without both Intersoft's consent and the consent of the relevant addressee);
(e) the Customer may only disclose management information or reporting based on the Tracking Data (including information and reports relating to parcel delivery and/or quality of service) to the relevant Shipping Account and to any person expressly approved in the Services Order Form;
(f) the Customer must not use Tracking Data to measure, monitor or report on any Carrier's performance in respect of the services provided by that Carrier to different persons or across a group of persons (except as necessary to publish aggregated statistics on the performance of all providers of parcel delivery services with which the Customer integrates Shipping Accounts using those services);
(g) the Customer shall ensure that Tracking Data communicated to any Shipping Account or addressee (or any person expressly approved in the Services Order Form) accurately reflects the Tracking Data supplied to the Customer and is communicated in a timely manner;
(h) unless Intersoft has agreed otherwise in writing, the Customer must not use Tracking Data to create comparisons between the prices and services of different Carriers, save that this does not prevent the Customer from making Carrier selections for a given Shipping Account based on: (i) that Shipping Account’s own rules; and (ii) such of the Tracking Data as concerns services provided to that Shipping Account and no other;
(i) the Customer must not represent Tracking Data (or aggregated statistics derived from it) in any way that is unfair, misleading, incorrect or inaccurate;
(j) the Customer must not alter, compile, aggregate, manipulate, decompile or reverse engineer Tracking Data outside the course of the Customer's usual business activities, save to the extent any restriction or prohibition on so doing would be unlawful;
(k) unless expressly permitted otherwise by the Agreement, the Customer must not extract (manually or otherwise) any data or information from any Carrier's website and must not provide such data or information to any person without the prior written consent of the relevant Carrier;
(l) additional Charges shall be payable with respect to the provision and use of the Tracking Data, as specified in the Services Order Form; and
(m) the Customer must comply with any provisions of the Customer's contract with the relevant Carrier relating to the Tracking Data.
5.4 If Intersoft Services are used by Shipping Accounts, the Customer shall be responsible for all Shipping Account queries and support related to the Customer Application, and must use reasonable endeavours to ensure that all Shipping Accounts comply with any instructions or guidance provided by Intersoft to the Customer.
5.5 The Customer must ensure that the Customer Application complies, at the Effective Date, with the requirements set out in the Services Order Form, and continues to do so during the Term.
- Customer Data
6.1 The Customer hereby grants to Intersoft a non-exclusive licence:
(a) to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of Intersoft's obligations and the exercise of Intersoft's rights under the Agreement; and
(b) to use the Customer Data to create aggregated data sets, providing that the aggregated data sets do not contain any Customer Personal Data or Customer Confidential Information and do not identify the Customer or any Shipping Account, and to use those aggregated data sets for any purpose relating to the business of Intersoft.
The Customer also grants to Intersoft the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
6.2 The Customer warrants to Intersoft that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.
6.3 Without prejudice to the generality of Clause 6.2, the Customer warrants that the Customer Data, and its use by Intersoft in accordance with the Agreement, will not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(f) be in contempt of any court, or in breach of any court order;
(g) constitute a breach of racial or religious hatred or discrimination legislation; or
(h) constitute a breach of official secrets legislation.
6.4 The Customer shall ensure that the Customer Data does not contain any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
- Integrations with Customer-Arranged Services
7.1 The Intersoft Services are integrated with certain Customer-Arranged Services, including those specified in the Services Order Form. Intersoft may configure and activate connections with those Customer-Arranged Services if requested by the Customer; and the Customer may configure and activate connections with those Customer-Arranged Services using the GUI to the extent permitted by the Intersoft Services. The Customer acknowledges that the Intersoft Services may not function properly if relevant Customer-Arranged Services are not accessible to the Intersoft Services.
7.2 Intersoft does not contract to supply the Customer-Arranged Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Customer-Arranged Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Customer-Arranged Services.
7.3 The Customer acknowledges that:
(a) the activation of a Customer-Arranged Services integration will entail the transfer of Customer Data from the Intersoft Services to the relevant Customer-Arranged Services; and
(b) Intersoft has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Customer Data resulting from any integration with any Customer-Arranged Services.
7.4 By agreeing to the activation of a Customer-Arranged Services integration, the Customer hereby consents to the transfer of the Customer Data to the Customer-Arranged Services provider. Without prejudice to its other obligations under this Clause 7, the Customer must ensure that it has in place the necessary contractual safeguards to ensure that both:
(a) the transfer of relevant Customer Personal Data to a provider of Customer-Arranged Services is lawful; and
(b) the use of relevant Customer Personal Data by a provider of Customer-Arranged Services is lawful.
7.5 The use of some features of the Intersoft Services may depend upon the Customer activating integrations between the Intersoft Services and Customer-Arranged Services.
7.6 The Customer warrants to Intersoft that the transfer of Customer Data by Intersoft to a provider of Customer-Arranged Services in accordance with this Clause 7 will not infringe any person's legal or contractual rights and will not put Intersoft in breach of any applicable laws.
7.7 Additional Charges may be payable by the Customer to Intersoft in respect of a Customer-Arranged Services integration.
7.8 Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 14.1:
(a) Intersoft gives no warranties or representations in respect of any Customer-Arranged Services; and
(b) Intersoft shall not be liable to the Customer in respect of any loss or damage that may be caused by any Customer-Arranged Services or any provider of Customer-Arranged Services, including loss or damage arising out of changes to Customer-Arranged Services that are not notified to Intersoft and/or errors in information relating to Customer-Arranged Services provided to Intersoft by the providers of such Customer-Arranged Services.
- Charges and payments
8.1 All amounts stated in or in relation to the Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to Intersoft.
8.2 Intersoft may elect to vary any element of the Charges, upon and from the start of an Agreement Period, by giving to the Customer not less than 100 days' prior written notice of the variation.
8.3 The Charges shall be invoiced by Intersoft to the Customer as follows:
(a) any Charges for the Set Up Services may be issued upon or following the Effective Date;
(b) fixed periodic Charges for Intersoft Services and Support Services may be invoiced up to 1 month before the commencement of the period to which they relate; and
(c) transaction-based Charges and any other Charges may be invoiced at any time following the provision of the corresponding Services.
8.4 All Charges must be paid within the period specified in the Services Order Form (or if no such period is specified, within 30 days following the date of issue of the relevant invoice).
8.5 The Customer must pay the Charges by bank transfer (using such payment details as are notified by Intersoft to the Customer from time to time).
8.6 If the Customer does not pay any amount properly due to Intersoft under the Agreement, Intersoft may charge the Customer interest on the overdue amount at the rate of 5% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
8.7 Intersoft shall have no obligation to provide any of the Services until such time as any Charges with respect to Set Up Services have been paid by the Customer to Intersoft in cleared funds.
8.8 Intersoft may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to Intersoft under the Agreement is overdue, and Intersoft has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend Services on this basis.
- Confidentiality obligations
9.1 Intersoft must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Agreement;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as Intersoft uses to protect Intersoft's own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the Customer Confidential Information.
9.2 The Customer must:
(a) keep the Intersoft Confidential Information strictly confidential;
(b) not disclose the Intersoft Confidential Information to any person without Intersoft's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Agreement;
(c) use the same degree of care to protect the confidentiality of the Intersoft Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the Intersoft Confidential Information.
9.3 Notwithstanding Clause 9.1 and 9.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
9.4 No obligations are imposed by this Clause 9 with respect to a party's Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
9.5 The restrictions in this Clause 9 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
9.6 Upon the termination of the Agreement, each party must immediately cease to use the other party's Confidential Information.
9.7 The provisions of this Clause 9 shall continue in force indefinitely following the termination of the Agreement.
- Data protection
10.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
10.2 The Customer warrants to Intersoft that it has the legal right to disclose all Personal Data that it does in fact disclose to Intersoft under or in connection with the Agreement.
10.3 The Customer shall only supply to Intersoft, and Intersoft shall only process, in each case under or in relation to the Agreement:
(a) the Personal Data of data subjects falling within the categories specified in the Services Order Form (or such other categories as may be agreed by the parties in writing); and
(b) Personal Data of the types specified in the Services Order Form (or such other types as may be agreed by the parties in writing).
10.4 Intersoft shall only process the Customer Personal Data for the purposes specified in the Services Order Form.
10.5 Intersoft shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 10.
10.6 Intersoft shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the United Kingdom and the European Economic Area), as set out in the Agreement or any other document agreed by the parties in writing.
10.7 The Customer hereby authorises Intersoft to make the following transfers of Customer Personal Data:
(a) Intersoft may transfer the Customer Personal Data internally to its own employees, offices and facilities in the United Kingdom, providing that such transfers must be protected by appropriate safeguards if required by the Data Protection Laws, as specified in the DTA;
(b) Intersoft may transfer the Customer Personal Data to its sub-processors in the jurisdictions identified in the Services Order Form, providing that such transfers must be protected by any appropriate safeguards identified therein or specified in the DTA; and
(c) Intersoft may transfer the Customer Personal Data to a country, territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
10.8 Intersoft shall promptly inform the Customer if, in the opinion of Intersoft, an instruction from the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
10.9 Notwithstanding any other provision of the Agreement, Intersoft may process the Customer Personal Data if and to the extent that Intersoft is required to do so by applicable law. In such a case, Intersoft shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
10.10 Intersoft shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.11 Intersoft and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
10.12 Intersoft must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, Intersoft shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third-party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days' written notice to Intersoft, providing that such notice must be given within the period of 7 days following the date that Intersoft informed the Customer of the intended changes. Intersoft shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on Intersoft by this Clause 10.
10.13 Intersoft is hereby generally authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the categories identified in the Services Order Form.
10.14 Intersoft shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
10.15 Intersoft shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. Intersoft may charge the Customer at its standard time-based charging rates for any work performed by Intersoft at the request of the Customer pursuant to this Clause 10.15.
10.16 Intersoft must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 36 hours after Intersoft becomes aware of the breach.
10.17 Intersoft shall make available to the Customer all information necessary to demonstrate the compliance of Intersoft with its obligations under this Clause 10. Intersoft may charge the Customer at its standard time-based charging rates for any work performed by Intersoft at the request of the Customer pursuant to this Clause 10.17, providing that no such charges shall be levied with respect to the provision by Intersoft of a detailed third-party audit report relating to the information security systems of Intersoft.
10.18 Intersoft shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data. The Customer acknowledges that Charges shall be payable with respect to the return of Customer Data at Intersoft's standard time-based charging rates.
10.19 Intersoft shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of Intersoft's processing of Customer Personal Data with the Data Protection Laws and this Clause 10. Intersoft may charge the Customer at its standard time-based charging rates for any work performed by Intersoft at the request of the Customer pursuant to this Clause 10.19, providing that no such Charges shall be levied where the request to perform the work arises out of any breach by Intersoft of the Agreement or any security breach affecting the systems of Intersoft.
- Warranties
11.1 Intersoft warrants to the Customer that:
(a) Intersoft has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement;
(b) Intersoft will comply with all applicable legal and regulatory requirements applying to the exercise of Intersoft's rights and the fulfilment of Intersoft's obligations under the Agreement;
(c) the Intersoft Services will be free from Defects; and
(d) the Intersoft Services, when used by the Customer in accordance with the Agreement, will not infringe the Intellectual Property Rights of any person under English law,
subject in each case to Clause 11.4.
11.2 If Intersoft reasonably determines, or any third party alleges, that the use of the Intersoft Services by the Customer in accordance with the Agreement infringes any person's Intellectual Property Rights, Intersoft may at its own cost and expense:
(a) modify the Intersoft Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Intersoft Services in accordance with the Agreement.
11.3 The Customer warrants to Intersoft that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
11.4 Notwithstanding any other provision of the Agreement but subject to Clause 14.1, the only warranties and representations given by Intersoft in relation to Underlying Services are those expressly set out in the applicable provisions of the Underlying Services T&Cs.
11.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
- Acknowledgements and warranty limitations
12.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to Clause 11.1 and the other provisions of the Agreement, Intersoft gives no warranty or representation that the Intersoft Services will be wholly free from defects, errors and bugs.
12.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to Clause 11.1 and the other provisions of the Agreement, Intersoft gives no warranty or representation that the Intersoft Services will be entirely secure.
12.3 The Customer acknowledges that the Intersoft Services are designed to be compatible only with that software and those systems specified as compatible in the Services Order Form; and Intersoft does not warrant or represent that the Intersoft Services will be compatible with any other software or systems.
12.4 The Customer acknowledges that Customer Data to be imported into the Intersoft Services must be in such formats and structures as Intersoft may specify from time to time.
12.5 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from Intersoft to the Customer, or from the Customer to Intersoft.
- Indemnities
13.1 Intersoft shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any claim that the Intersoft Services infringe any third party's Intellectual Property Rights (an "Intersoft Indemnity Event").
13.2 The Customer must:
(a) upon becoming aware of an actual or potential Intersoft Indemnity Event, notify Intersoft;
(b) provide to Intersoft all such assistance as may be reasonably requested by Intersoft in relation to the Intersoft Indemnity Event;
(c) allow Intersoft the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Intersoft Indemnity Event; and
(d) not admit liability to any third party in connection with the Intersoft Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Intersoft Indemnity Event without the prior written consent of Intersoft.
13.3 The Customer shall indemnify and shall keep indemnified Intersoft against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Intersoft and arising directly or indirectly as a result of any claim that the Customer Data infringes any third party's Intellectual Property Rights (a "Customer Indemnity Event").
13.4 Intersoft must:
(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
(b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
(d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer.
13.5 The indemnity protection set out in this Clause 13 shall not be subject to the limitations and exclusions of liability set out in the Agreement, except that Clauses 14.7 and 14.9 shall apply.
- Limitations and exclusions of liability
14.1 Nothing in the Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in the Agreement:
(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
14.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
14.4 Intersoft shall not be liable to the Customer in respect of:
(a) any loss of profits or anticipated savings;
(b) any loss of revenue or income;
(c) any loss of use or production;
(d) any loss of business, contracts or opportunities; or
(e) any loss or damage arising out of disclosure or use of Tracking Data by the Customer.
14.5 Intersoft shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 14.5 shall not apply to any liability of Intersoft under Clause 9 or Clause 10.
14.6 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
14.7 With respect to any loss or damage caused by the Underlying Services or any issue affecting the Underlying Services:
(a) the limitations and exclusions of liability set out in the applicable provisions of the Underlying Services T&Cs shall apply, in addition to those set out in this Clause 14 and elsewhere in the Agreement (and to the extent that such limitations and exclusions are expressed to protect the third-party provider of those Underlying Services, they shall also protect Intersoft as they protect such provider); and
(b) Intersoft shall not be liable to the Customer for any such loss and damage, save to the extent that the third-party provider of the Underlying Services is liable to Intersoft under its contract with Intersoft.
14.8 The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) GBP 25,000; and
(b) the total amount paid and payable by the Customer to Intersoft under the Agreement in the 12-month period preceding the commencement of the event or events,
providing that this Clause 14.8 shall not apply to any liability of Intersoft under Clause 10 or Clause 13.1; nor will this Clause 14.8 apply to any liability of the Customer under Clause 13.3. In addition, this Clause 14.8 shall not limit any obligation of the Customer to pay the Charges due under the Agreement.
14.9 The aggregate liability of each party to the other party under the Agreement shall not exceed GBP 250,000.
- Force Majeure Event
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
- Termination
16.1 Either party may terminate the Agreement at the end of an Agreement Period by giving to the other party not less than 90 days' prior written notice of termination expiring at the end of that Agreement Period.
16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and the breach is not remediable; or
(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.
16.3 Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
16.4 Intersoft may terminate the Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to Intersoft under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) Intersoft has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 16.4.
16.5 The Customer must promptly notify Intersoft of any change of Control of the Customer. Intersoft will perform a vetting process in relation to any person gaining Control of the Customer; and Intersoft may terminate the Agreement if the Customer is subject to a change of Control, by giving to the Customer written notice of termination, such notice to be given at any time within the period of 30 days of Intersoft becoming aware of the change of Control.
16.6 The Agreement may only be terminated in accordance with its express provisions.
- Effects of termination
17.1 Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.2(b), 4.8, 6.1(b), 7.8(b), 8.3 to 8.6, 9, 10, 13, 14, 17, 19 and 20.
17.2 Except to the extent that the Agreement expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
- Notices
18.1 Any notice given under the Agreement must be in writing, whether or not described as "written notice" in the Agreement.
18.2 Any notice given by one party to the other under the Agreement must be:
(a) sent by courier;
(b) sent by recorded signed-for post; and/or
(c) sent by email,
using the relevant contact details set out in the Services Order Form.
18.3 The addressee and contact details set out in the Services Order Form may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 18.
18.4 A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:
(a) in the case of notices sent by courier, upon delivery; and
(b) in the case of notices sent by post, 48 hours after posting; and
(c) in the case of notices sent by email, upon the first opening of the email by the recipient.
- General
19.1 Save to the extent expressly permitted by applicable law, Intersoft must not assign, transfer or otherwise deal with Intersoft's contractual rights and/or obligations under the Agreement without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that Intersoft may assign the entirety of its rights and obligations under the Agreement to any Affiliate of Intersoft or to any successor to all or a substantial part of the business of Intersoft from time to time. The Customer acknowledges that Intersoft is subject to legal restrictions relating to the persons with whom it may contract. Accordingly, and save to the extent expressly permitted by applicable law, the Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under the Agreement without the prior written consent of Intersoft.
19.2 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
19.3 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
19.4 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party. The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
19.5 The Agreement may be varied as follows:
(a) Intersoft may vary the Agreement, upon and from the end of any Agreement Period, by giving to the Customer not less than 100 days' prior written notice of the variation;
(b) Intersoft may vary the Agreement to the extent reasonably necessary to ensure that the Agreement covers new Intersoft Services and changes to the Intersoft Services by giving to the Customer not less than 7 days' prior written notice of the variation, providing that no such variation will result in an increase in the Charges;
(c) Intersoft may vary the Agreement to the extent reasonably necessary to ensure that the Agreement and the parties comply with applicable law, by giving to the Customer written notice of the variation; and
(d) the Agreement may be varied by a written document signed or otherwise agreed by or on behalf of each of the parties,
and, to the extent that Intersoft has a right to vary the Agreement in accordance with this Clause 19.5, Intersoft may prevent or inhibit the Customer from accessing the Intersoft Services before the Customer has acknowledged notice of and/or agreed to the relevant variation.
19.6 The Agreement Documentation shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
19.7 The Agreement shall be governed by and construed in accordance with English law.
19.8 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
- Interpretation
20.1 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
20.2 The Clause headings do not affect the interpretation of the Agreement.
20.3 References in the Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
20.4 In the Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.