TERMS AND CONDITIONS
 
Last modified: 14 May 2024These Service Terms and Conditions (including each Exhibit and the Order Form and Statement of Work) (“Terms and Conditions”) are made between Atominvest Software Ltd (trading as Atominvest) whose registered office is at 60-62 Margaret Street, London W1W 8TF, United Kingdom (“Company”) and the Customer.
By executing an Order Form and/or a Statement of Work Customer agrees to be bound by these Terms and Conditions.
1. Definitions
1.1. The following words and expressions shall have the following meanings:
"Authorised User" any Customer employees, agents, customers, third-party service providers and anyone to whom Customer has provided access to the Service. For the avoidance of doubt, under no circumstances may any agent, employee or affiliate of a Competitor of the Company be designated an Authorised User unless Customer has obtained prior written consent from the Company;
"Business Day" each day which is not a Saturday or Sunday or a bank or public holiday in England and Wales;
“Business Hours” means 8am-5.30pm (UK time) on Business Days;
“Competitor” any person, firm, business or other organisation or entity that designs, develops, produces, offers for sale or sells products that are in competition with the products of the Company;
“Confidential Information” all information and materials provided by one party to another under or in relation to these Terms and Conditions which are marked confidential or which a reasonable business person would consider to be confidential given the nature of the information and materials;
“Contract Year” each 12 month period beginning on the Effective Date;
"Company Content" all data, information and material owned by or licensed to the Company and comprised within the Service, but excluding Customer Data;
“Customer” means the legal entity (or parent entity of the group the legal entity belongs to) which enters into these Terms and Conditions as set out in the Order Form or Statement of Work (as applicable);
"Customer Data" all data, information and material input or uploaded to the Service or transmitted through the Service by the Customer and/or any Authorised User, including Personal Data;
“DPA” has the meaning given in clause 11.1;
“Effective Date” has the meaning given in the Order Form;
“Implementation Fee” means the fee payable by the Customer for the Implementation Services as set out in the Order Form;
“Implementation Services” means the implementation services to be provided (where applicable) by the Company as more fully set out in the Statement of Work;
"Intellectual Property Rights" patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
"Order Form" the Order Form(s) to which the Customer agrees when buying Company software licenses or professional services;
“Personal Data” has the meaning given in the DPA;
“Processor” has the meaning given in the DPA;
"Rate Card” the applicable prices for additional Services ordered by the Customer during the course of this Agreement, including work carried out on a time & materials basis, as set out in the Order Form and/or Exhibit D to these Terms and Conditions, as applicable, and which may be updated by the Company in accordance with clauses 5.7 and 5.8, as applicable. For the avoidance of doubt, where the Customer requires onerous ongoing audit, compliance or security review and/or onerous reporting, the Company shall be entitled to charge for these on a time and materials basis in line with the pricing in the Rate Card.
“Services" the provision of access to the Software, any Implementation Services and the Support Services;
“Service Capacity” the limits (for example, number of Authorised Users, assets under management etc.) set out in the Order Form;
"Service Fees" the fees set out in the Order Form or in Exhibit D to these Terms and Conditions, as applicable;
"Software" any software (including the Company’s fund management software platform) owned by or licensed to the Company and which forms part of, or is used in the provision the Service as set out in the Order Form;
"Statement of Work" the Statement of Work in which forms part of the applicable Order Form;
“Support Services” means the support services to be provided by the Company as set out in Exhibit C; and
“Term” has the meaning given in clause 12.1.
1.2 In these Terms and Conditions:
(a)    words in the singular include the plural;
(b)   reference to a person includes a legal person (such as a limited company) as well as a natural person;
(c)    clause headings are for convenience only and shall not affect the construction of these Terms and Conditions;
(d)   reference to "including" or any similar terms in these Terms and Conditions shall be treated as being by way of example and shall not limit the general applicability of any preceding words; and
(e)    reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.
2. Provision of Services
2.1 Following the Effective Date, and subject to the terms of these Terms and Conditions, , the Company will provide the Customer with the Services in accordance with these Terms and Conditions.
3. Grant of license and scope of authorised use
3.1 Subject to full payment of the applicable Service Fees and the other provisions of these Terms and Conditions, the Customer is granted a non-transferable, non-exclusive license, for the Term to access and use the Services within the Service Capacity. Without prejudice to clause 3.2, the Customer may not sub-license the right to access and/or use the Service to any third party. All rights in and to the Services, (including the Company Content but excluding Customer Data) and Software are reserved to the Company.
3.2 Subject to the Service Capacity, only the Customer and the Authorised Users are licensed to access and use the Services and solely for the Customer’s business purposes.
3.3 The Customer will not, directly or indirectly:
(a)    except to the extent permitted by law, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or the Software;
(b)   modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted in writing by the Company);
(c)    use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(d)   remove any proprietary notices or labels from the Services.
(e)    permit any third party who is not an Authorised User to access or use the Services or use the same on behalf of any third party who is not an Authorised User (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
(f)    not attempt to circumvent security, license control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Services or Software or any associated website, computer system, server, router or any other internet-connected device; or
(g)   employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use the Services (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorised use contained in these Terms and Conditions.
3.4 The Customer shall not, and shall ensure that Authorised Users shall not use the Services to:
(a)    upload, store, post, email, transmit or otherwise make available any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited;
(b)   upload any Customer Data that infringes the Intellectual Property Rights of any third party;
(c)    impersonate any person or entity or otherwise misrepresent the Customer’s relationship with any person or entity;
(d)   engage in any fraudulent activity or further any fraudulent purpose;
(e)    provide false identity information; and
(f)    attempt to gain unauthorised access to the Services or its related systems or networks, and shall not permit any third party to do any of the foregoing.
3.5 The Customer shall permit the Company or its authorised agents to monitor Customer’s usage of the Services to establish whether the Customer is complying with the terms of these Terms and Conditions. If the Company determines that the Customer has under paid any Service Fees, including by exceeding the Service Capacity, or breaching the Terms and Conditions then without prejudice to the Company's other rights:
(a)    the Customer shall pay to the Company an amount equal to the underpayment within ten (10) Business Days of the date of the relevant audit;
(b)   the Company shall be entitled to suspend access to the Services while the payment due under clause 3.5(a) is made to the Company.
4. Administrator, Authorised Users
4.1 The Customer shall designate one contact as the responsible party for communication with the Company during the Term (the "System Administrator"). The System Administrator shall have the authority to bind the Customer, except that another duly authorised representative of the Customer may change the System Administrator by giving written notice to the Company.
4.2 The System Administrator may establish accounts for Authorised Users.
4.3 The Customer shall ensure that each Authorised User shall, as a condition of being granted access to the Service, be required by the System Administrator to acknowledge the obligations on the Customer under these Terms and Conditions respecting authorised use (and restrictions on use) of the Service and agree to comply with the same. The Customer shall immediately notify the Company in the event that the Customer becomes aware of any breach of the terms of these Terms and Conditions by any Authorised User.
4.4 The Customer shall be responsible for all access to and use of the Service by Authorised Users. The Customer shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the Customer or any Authorised User in order to access or use the Service ("ID"). The Customer acknowledges and agrees that the Customer will be solely responsible for all activities that occur under such ID. The Customer shall promptly notify the Company upon becoming aware of any unauthorised access to or use of the Services, and provide all reasonable assistance to the Company to bring an end to such unauthorised access or use.
5. Service Fees, invoicing and payment
5.1 The Customer will pay the Company the applicable Service Fees and the Implementation Fee described in the Order Form for the Services. If the Customer’s use of the Services exceeds the Service Capacity or otherwise requires the payment of additional Service Fees, the Customer shall be billed for such usage and the Customer shall  pay the additional Service Fees in the manner provided herein.
5.2 Payments for the Services are non-refundable. For example, if the Customer buys and pays for ten (10) Authorised Users for an annual term and two (2) months into the Customer’s annual term, the Customer wishes to  reduce the number of Authorised Users to five (5) then the Company will acknowledge this change but it will not come into effect until the end of the Term. If the Customer has paid for multiple terms already then the Company is not obligated to issue a refund.
5.3 If the Customer, acting reasonably and in good faith,  believes that the Company has billed the Customer incorrectly, the Customer must contact the Company no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.4 The Company will bill through an invoice for the Initial Service Term or as specified in the Order Form. Until payment of the Service Fee for the first Contract Year is received, no Implementation Services will be carried out by the Company.
5.5 Unless otherwise expressly provided in these Terms and Conditions, all amounts referred to in these Terms and Conditions are exclusive of value added tax or other applicable sales tax which, where chargeable by the Company, shall be payable by the Customer at the rate and in the manner prescribed by law. Additionally, any payment processing fees shall be borne by the Customer.
5.6 Invoices are payable, in full, by the Due Date and without deduction, set off or withholding of any kind. All invoices shall be paid by the Customer on the due date indicated on the invoice or within thirty (30) calendar days of the Customer’s receipt of the relevant invoice (“Due Date”).
5.7  During the Initial Service Term, the Company shall be entitled to increase the Service Fees and the price list for services section of the Rate Card with effect from each anniversary of the Effective Date by the greater of: (i) the percentage increase in the UK Retail Price Index in the preceding 12-month period rounded up to the nearest whole percent; or (ii) three  per cent (3%).
For the avoidance of doubt, the price list for professional services / time and materials section of the rate card may be updated in line with the current Company rates at any time.
5.8 Following the end of the Initial Service Term, the Company shall be entitled to update the Service Fees to the Company’s current list price or to a rate agreed with the Customer in a new Order Form, as the case may be.
5.9 If the Company has not received full and cleared payment for the Fee within five (5) Business Days after the Due Date, and without prejudice to any other rights and remedies of the Company, the Company may without liability to the Customer :
(a)    suspend provision of the Services; and
(b)   charge the Customer interest on the overdue amount at the rate of 4% per month above the Bank of England base rate (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
6. Warranties
6.1 The Company warrants that it has the right to agree to these Terms and Conditions and to provide the Services as contemplated by these Terms and Conditions.
6.2 The Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
6.3 The Company does not control the content posted to or via the Services and, in particular, does not control the Customer Data and, as such, the Company does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of such content or data.
6.4 Except as expressly set out in these Terms and Conditions and subject only to clause 9.1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Services (including any Company Content) or to anything supplied or provided by the Company under these Terms and Conditions.
6.5 The Customer warrants and undertakes that: (i) it has the legal right and authority to enter into these Terms and Conditions; (ii) the person executing these Terms and Conditions on behalf of the Customer is duly authorised to do so and has the authority to bind the Customer to these Terms and Conditions; and (iii) it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfillment of its obligations under these Terms and Conditions.
6.6 If any of the warranties in clause 6.5 is breached, the Customer must notify the Company as soon as possible.
6.7 The Customer acknowledges that the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control.
7. Intellectual Property Rights
7.1 Nothing in these Terms and Conditions shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
7.2 The Company and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Company's brands, trade marks and logos, the Services (including the Company Content but excluding the Customer Data) and the Software. Except as expressly permitted between the Parties in writing, the Customer may not use any of the Company's Intellectual Property Rights without the Company's prior written consent.
7.3 The Customer shall promptly bring to the attention of the Company any improper or wrongful use of any Intellectual Property Rights of the Company which comes to the Customer’s notice. The Customer shall assist the Company in taking all steps to defend the Company's Intellectual Property Rights, but the Customer shall not institute legal proceedings of the Customer’s own accord.
7.4 The Customer shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data. The Customer grants to the Company, free of charge, a royalty-free, worldwide, non-exclusive license to use the Customer Data only to such extent as is necessary to enable the Company to provide the Services and to perform its obligations under these Terms and Conditions. The Customer warrants and undertakes that the Customer owns the Customer Data and/or are otherwise entitled to grant the foregoing license. If these Terms and Conditions are terminated, the foregoing license will automatically terminate.
8. Indemnities
8.1 The Customer will indemnify, defend and hold the Company harmless, at the Customer’s expense, against any losses, costs, damages and/or expenses (including reasonable legal costs) incurred by the Company in connection with any claim, suit, action, or proceeding (each, an "Action") brought against the Company (and its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party to the extent that such Action is based upon or arises out of:
(a)    unauthorized or illegal use of the Services by the Customer;
(b)   the Customer’s non-compliance with or breach of this Agreement;
(c)    the Customer’s use of any third-party products in connection with the Services and/or Software; or
(d)   the unauthorized use of the Services or Software by any other person using an Authorised User’s credentials to access the Services.
The Company will: (i) notify the Customer in writing within thirty (30) days of becoming aware of any such claim; (ii) give the Customer sole control of the defence or settlement of such a claim; and (iii) provide the Customer (at the Customer’s expense) with any and all information and assistance reasonably requested by the Customer to handle the defence or settlement of the claim. The Customer shall not accept any settlement that (i) imposes an obligation on the Company; (ii) requires the Company to make an admission; or (iii) imposes liability not covered by this clause 8.1 or places restrictions on the Company, in each case, without the Company’s prior written consent.
8.2 Subject to clause 9.4, the Company will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the Customer’s use of any of the Services in accordance with these Terms and Conditions infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify the Customer from any damages, legal fees and costs finally awarded against Customer as a result of, or for amounts paid by the Customer under a settlement approved by the Company in writing of, a Claim Against Customer, provided the Customer:
(a)    promptly gives the Company written notice of the Claim Against Customer;
(b)   gives the Company sole control of the defence and settlement of the Claim Against Customer (except that the Company may not settle any Claim Against Customer unless it unconditionally releases the Customer of all liability); and
(c)    gives the Company all reasonable assistance, at the Company’s expense.
The above defence and indemnification obligations do not apply if:
(a)    the allegation does not state with specificity that the Services are the basis of the Claim Against Customer;
(b)   a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by the Company, if the Services or use thereof would not infringe without such combination;
(c)    a Claim Against Customer arises from Services under an Order Form for which no Service Fees are payable; or
(d)   a Claim against Customer arises from Customer Data, a non-company application or the Customer’s breach of these Terms and Conditions.
9. Exclusions and limitations
9.1 Nothing in these Terms and Conditions limits or excludes either party's liability:
(a)    for death or personal injury caused by its negligence;
(b)   for fraudulent misrepresentation or for any other fraudulent act or omission;
(c)    to pay sums properly due and owing to the other in the normal course of performance of these Terms and Conditions; and/or
(d)   for any other liability which may not lawfully be excluded or limited.
9.2 Subject to clause 9.1, the Company shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:
(a)    loss of profit;
(b)   loss of sales, turnover, revenue or business;
(c)    loss of customers, contracts or opportunity;
(d)   loss of or damage to reputation or goodwill;
(e)    loss of anticipated savings;
(f)    loss of any software or data;
(g)   loss of use of hardware, software or data;
(h)   loss or waste of management or other staff time; or
(i)    indirect, consequential or special loss arising out of or relating to these Terms and Conditions whether or not advised of the possibility of such losses.
9.3 Subject to clause 9.1, the Company shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of any:
(a)    use of the Services except for its normal intended purpose;
(b)   adaptation or modification of the Services, or integration or combination with any other equipment, software, services or material not supplied by the Company or a third party authorised by the Company;
(c)    compliance by the Company with any design, specification or instructions provided by the Customer or on the Customer’s behalf; or
(d)   any Customer Data.
9.4 Subject to clauses 9.1, 9.2 and 9.3, the Company's total liability arising out of or relating to these Terms and Conditions or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise) shall be limited, in respect of each Contract Year, to the total Service Fees (excluding any Implementation Services fees or custom development fees) paid by the Customer in that Contract Year as set out in the Order Form.
10. Confidentiality
10.1 Subject to clause 10.2, each party shall:
(a)    keep confidential all Confidential Information of the other party which it receives in connection with these Terms and Conditions;
(b)   apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
(c)    only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, these Terms and Conditions;
(d)   not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and sub-contractors on a 'need to know' basis as strictly required for the purposes of these Terms and Conditions and subject to each such person being bound by an obligation of confidentiality equivalent to this clause 10); and
(e)    promptly, upon request and, in any event, upon termination of these Terms and Conditions (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
10.2 Confidential Information shall not include any information that the recipient can establish:
(a)    was publicly known and made generally available in the public domain prior to the time of disclosure;
(b)   becomes publicly known and made generally available after disclosure through no breach of these Terms and Conditions or any other contractual obligation;
(c)    is already known by or legally in the possession of the recipient at the time of disclosure; and/or
(d)   is lawfully disclosed to the recipient, without confidentiality obligation, by a third party.
10.3 Either party may disclose the other's Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
10.4 The Customer acknowledges and agree that the Services (including the Company Content but excluding Customer Data) and Software and the terms of these Terms and Conditions including, in particular, the pricing, constitute Confidential Information of the Company. The Company acknowledges and agrees that the Customer Data constitutes Confidential Information of the Customer.
10.5 Notwithstanding anything to the contrary, the Company shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free to:
(a)    use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
(b)   disclose such data solely in aggregate or other de-identified form.
11. Data Protection
11.1 The terms of the Data Processing Addendum attached to these Terms and Conditions as Exhibit E shall apply to any processing of Personal Data by the Company on behalf of the Customer pursuant to these Terms and Conditions (“DPA”).
11.2 The DPA sets out how the Company will process Personal Data on the Customer’s behalf in connection with the Services provided to the Customer under these Terms and Conditions. The Company will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA.
11.3 As per the DPA, the parties agree that the Company is the Processor of any Personal Data in the Customer Data such as names and contact details for the Customer’s network of contacts. Accordingly, the Customer warrants,  represents and undertakes that the Customer has the right to upload the Personal Data contained in the Customer Data to the Services.
12. Term and termination
12.1 Subject to earlier termination as provided below, these Terms and Conditions shall commence on the Effective Date and continue  for the Initial Service Term as specified in the Order Form, and thereafter shall be automatically renewed for additional periods of 12 months (each a “Renewal Term”), unless either party requests termination at least thirty (30) days prior to the end of the Initial Service Term or Renewal Term (as applicable) (“Term”). In the event that the Customer renews beyond the Initial Service Term, the Company shall have the right to amend these Terms and Conditions subject to approval by the Customer.
12.2 In addition to any other remedies it may have, either party may terminate these  Terms and Conditions, by written notice to the other party, if the other party:
(a)    commits a material breach of this Agreement and such breach is not remediable;
(b)   materially breaches any of the terms or conditions of these Terms and Conditions which is not remedied within fifteen (15) days of receiving written notice of such breach;or
(c)    becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
12.3 On termination, if applicable, the Customer will pay in full all outstanding Service Fees for the Services and any additional services in accordance with the terms of  the Rate Card up to and including the last day on which the Service is provided.
12.4 All sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
12.5 Without prejudice to clause 12.1, the Company may, in addition, and without liability, terminate these Terms and Conditions, or alternatively, may suspend access to and use of the Service, by giving the Customer written notice if:
(a)    any provision of clause 3.3 is breached; and/or
(b)   the Customer is in persistent or repeated breach of any of the Customer’s obligations under these Terms and Conditions (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
13. Force majeure
13.1 Neither party will be liable to the other for any failure or delay in performing its obligations under these Terms and Conditions which arises because of any circumstances which it cannot reasonably be expected to control (which shall include Act of God, pandemic or epidemic, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of the Company or a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery or breakdown in machinery, or interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing, but shall not include shortage or lack of available funds on the Customer’s part), provided that it:
(a)    notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;
(b)   uses reasonable efforts to mitigate the effects of the circumstances so as to minimise or avoid any adverse impact on the other; and
(c)    uses reasonable efforts to resume performance as soon as reasonably practicable.
14. General
14.1 All notices under these Terms and Conditions will be in writing and will be deemed to have been duly given when (i) received, if personally delivered; (ii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
14.2 Unless the parties expressly agree otherwise in writing, if a party:
(a)    fails to exercise or delays exercising or only exercises partially any right or remedy provided under these Terms and Conditions or by law; or
(b)   agrees not to exercise or to delay exercising any right or remedy provided under these Terms and Conditions or by law;
then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.
14.3 No agency, partnership, joint venture, or employment is created as a result of these Terms and Conditions and neither party has any authority of any kind to bind the other party in any respect whatsoever.
14.4 If any provision of these Terms and Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms and Conditions will otherwise remain in full force and effect and enforceable.
14.5 These Terms and Conditions are not assignable, transferable or sub-licensable by the Customer except with the Company’s prior written consent. The Company may sub-contract, transfer and/or assign any of its rights and obligations under these Terms and Conditions without the Customer’s consent.
14.6 A person who is not a party to these Terms and Conditions shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.7 Each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that the Bribery Act 2010.
14.8 The Customer agrees that it will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, the Office of Financial Sanctions Implementation (OFSI) of the U.K. HM Treasury and the E.U. Sanctions List. The Customer will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals or permit use of the Services by prohibited countries or individuals.
14.9 These Terms and Conditions are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms and Conditions. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Provided always that nothing in this clause will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of these Terms and Conditions and each party acknowledges that it has not been influenced to agree to these Terms and Conditions by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in these Terms and Conditions.
14.10 These Terms and Conditions are governed by the laws of England and Wales. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with these Terms and Conditions or its subject matter, but the Company is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.
 Service Level Terms
The Software shall be available 99.9% of the time , measured monthly, excluding holidays, weekends, scheduled office closures and scheduled, notified and excluded maintenance and the downtime set out below (“Availability Threshold”).
Downtime will not accrue where the non-availability is due to:
(a)    A cause beyond the Company’s reasonable control;
(b)   Any scheduled, notified or emergency downtime;
(c)    A fault on the Customer’s network or own equipment configuration;
(d)   A fault or incident caused within the Customer’s own infrastructures or configuration of said infrastructure causing the suspension of the Software and/or hardware failure;
(e)    A fault/bug in the Customer’s own software such as firmware, operating system, infrastructure software or the Customer’s own infrastructure or configuration of such infrastructure causing suspension of the Software and/or hardware failure;
(f)    Any incidents and downtime caused by the Customer’s own management of the Software;
(g)   Third Party network issues or suspensions; and/or
(h)   Downtime caused by the Customer accessing the Software over the internet, where the downtime is directly attributable to the public network itself.
For the avoidance of doubt, an ongoing migration of Customer Data into the Software or Services shall not constitute downtime and does not impact provision of the Software.