ZUTEC TERMS AND CONDITIONS
Last updated: 06/09/2022
- These terms and conditions (Terms and Conditions) apply to the Customer’s use of the Solution and receipt of the Additional Services.
- The definitions and rules of interpretation in this Section apply in these Terms and Conditions and, unless expressly provided otherwise, the Order.
- “Additional Services” means any support and maintenance services or professional services to be provided by Zutec as identified and set out in the Order Terms;
- “Affiliate” means in respect of a party, its subsidiaries, its holding companies and every subsidiary of each such holding company from time to time (and for this purpose “subsidiary” and “holding company” shall be construed in accordance with section 1159 of the Companies Act 2006) and any other entity agreed in writing by the parties as being an Affiliate in respect of either party;
- “Anonymised Data” has the meaning given in Section 5.2;
- “Asset” means a building, facility or other construction;
- “Asset Data” means any of the Customer Data which relates to an Asset, including any O&M files, health and safety files and [other examples to be specified];
- “Asset Owner” means the [person who owns or is in control of the Asset];
- “Assurance Centre” means the online repository of the Hosting and Security Policies and other information maintained and published by Zutec regarding the Solution (see www.[enter details]);
- “Authorised Users” means those employees and directors of: (i) the Customer; (ii) the Customer’s Affiliates identified in an Order; and (iii) any third party individual contractor or anyone who is not an employee or director of the Customer or a Customer Affiliate included in the Order, who are authorised to use the Solution by the Customer pursuant to the enrolment process set out in Section 3.3;
- “Business Day” means any day which is not a Saturday, Sunday or public holiday in London;
- “Confidential Information” means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with any copies, which relates to a party (the “Disclosing Party“), to its Group, or to its (or its Group members’) employees, officers, customers or suppliers, and which is directly or indirectly disclosed by or on behalf of the Disclosing Party to another party (the “Receiving Party“) under or in connection with the Order (or which is learnt or acquired by the Receiving Party in connection with an Order), whether before or after the date of the Order, and which would reasonably be regarded as confidential, BUT shall not include (i) information which is in the public domain other than as a result of a breach of the Order or any separate confidentiality undertaking between the parties; (ii) information which the Receiving Party received, free of any obligation of confidence, from a third party which was not itself under any obligation of confidence in relation to that information, whether before the date of its disclosure by the Disclosing Party or otherwise; or (iii) information which the Receiving Party can show by its written or other records was developed or created independently by the Receiving Party or any member of the Receiving Party’s Group;
- “Contractor” means a person engaged by the Asset Owner in the construction, development and/or maintenance of an Asset;
- “Control” means the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares or interests of an entity;
- “Customer” means the customer entity identified as such in the Order;
- “Customer Data” means any data transferred to Zutec by the Customer, including any data input into the Solution by the Authorised Users;
- “Disclosing Party” means a party disclosing its Confidential Information to the Receiving Party and in the case of the Customer may be the Customer, the Authorised Users and/or the Customer’s Affiliates and in the case of Zutec may be Zutec and/or Zutec’s Affiliates, as applicable;
- “Documentation” means any documentation associated with the Solution or Additional Services supplied by Zutec to the Customer, including any documentation available via the Assurance Centre;
- “Effective Date” means the date(s) specified in the Order Terms, from which Zutec shall provide the Customer with access to the relevant Solution and/or Additional Services;
- “Expiry Date(s)” means the date(s) specified in the Order Terms from which Zutec shall cease to provide the Customer with access to the relevant Solution;
- “Fees” means the fees payable to Zutec by the Customer for provision of the Solution and the Additional Services, as set out in the Order Terms;
- “Group” in relation to each party means that party and its Affiliates;
- “Hosting and Security Policies” means Zutec’s published policies, located in the Assurance Centre and as updated from time to time in accordance with an Order, setting out its processes and procedures for maintaining the security, availability and performance of the Solution;
- “Initial Term” means the initial term specified in the Order Terms;
- “Insolvency Event” means the occurrence of any one or more of the following events in relation to a party:
- the party becomes unable to pay its debts (within the meaning of section 123(1)(e) or (2) of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent;
- a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the party;
- an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the party and/or over all or any part of the assets of the party;
- the party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or
- anything equivalent to any of the events or circumstances listed in limbs (a) to (d) (inclusive) occurs in any applicable jurisdiction;
- “Intellectual Property Rights” means: (i) patents, rights to inventions, designs, copyright and related rights, database rights, trade marks, related goodwill and the right to sue for passing off] and trade names, in each case whether registered or unregistered; (ii) proprietary rights in domain names; (iii) knowhow, trade secrets and Confidential Information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;
- “IPR Claim” means any claim or action against the Customer by any third party that the use of the Solution (or any part of the Solution) by the Customer in accordance with the terms of the Order, infringes the copyright of that third party;
- “Order” means and order for the supply of the Solution and/or Additional Services, entered into between Zutec and the Customer;
- “Order Terms” means the terms identified as such in the Order;
- “Receiving Party” means a party receiving Confidential Information from the Disclosing Party and in the case of Zutec may be Zutec and/or Zutec’s Affiliates, as relevant;
- “Related Persons” means Zutec’s Affiliates and Zutec’s and Zutec’s Affiliates’ employees, directors, officers, agents and subcontractors;
- “Requirements” means the requirements to be met for the delivery of Additional Services as set out in Section 4;
- “Renewal Period” means the renewal period specified in the Order Terms (and, if no such period is specified, a period of twelve (12) months;
- “Sales Tax” means any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, fees and surcharges that are legally or by custom borne by a purchaser of goods or services;
- “Service Description(s)” means the published specification for each Solution, as updated from time to time in accordance with these Terms and Conditions;
- “Service Level Arrangements” means, where applicable, the service level arrangements set out in the Service Description for a Solution;
- “Solution” means the software-as-a-service (SaaS) solutions that Zutec provides to the Customer pursuant to the Order, as specified in the Order Terms;
- “Software” means the software used by Zutec, Zutec’s Affiliates and/or any sub-contractors in delivering the Solution;
- “Term” means the Initial Term and any Renewal Period;
- “Usage Rights” means the conditional basis upon which Zutec provides the Solution as set out in each Order, which may include specified permitted uses of the Solution, a specified number of Authorised Users, technical storage or capacity limits relating to use of the Solution and/or geographic constraints on access to the Solution;
- “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
- “Year” shall mean the period of twelve months commencing on the Effective Date and each and any period of twelve months commencing on an anniversary of the Effective Date subsequent thereto;
- “Zutec” means the entity identified as “Zutec” in the Order;The Section headings are for convenience only and shall not affect the interpretation of these Terms and Conditions or any other part of the Order.References to the singular include the plural and vice versa, and references to one gender include the other genders.Any reference to persons includes natural persons, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, local authorities, governments, states, foundations and trusts (in each case whether or not having separate legal personality) and any agency of any of the above.Any phrase introduced by the terms “including”, “include”, “in particular”, “such as”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
|0.1||Any reference to a statute, statutory provision or subordinate legislation (legislation) (except where the context otherwise requires): (i) shall be deemed to include any by-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation; and (ii) shall be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.|
|0.2||Any reference to an English legal expression for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal expression.|
|0.3||Any reference to “writing” or “written” includes email.|
|0.4||Any reference to these Terms and Conditions or to any other agreement or document referred to in these Terms and Conditions is a reference to these Terms and Conditions or such other agreement or document as varied or novated from time to time in accordance with its terms (in each case, other than in breach of the provisions of these Terms and Conditions).|
|0.5||Unless specified to the contrary, any times stated in an Order refer to local time in London, United Kingdom.
USE OF THE SOLUTION
|1.1||In consideration of the payment by the Customer to Zutec of the Fees, Zutec grants to the Customer access to the Solution from the Effective Date.|
|1.2||In relation to the Solution:
|1.3||In relation to Authorised Users:
|1.4||Where the Usage Rights limit the number of Authorsised Users the Customer may appoint, if the Customer wishes to purchase the right to increase the number of Authorised Users, the Customer shall notify Zutec in writing. Zutec shall evaluate such request for additional Authorised Users and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld).|
|1.5||If Zutec approves the Customer’s request to purchase access for additional Authorised Users under Section 3.4, the Customer shall, within thirty (30) calendar days of the date of Zutec’s invoice, pay to Zutec the relevant fees for such additional Authorised Users, as set out in the applicable Order.|
|1.6||Zutec may amend these Terms and Conditions (as they apply to any Order), the Solution, the Service Descriptions and/or the Assurance Centre from time-to-time provided such changes apply to the majority of customers for the Solution and do not materially and negatively impact the functionality, performance or security of the Solution. Zutec shall inform the Customer of such changes in accordance with the process set out in the relevant Service Description or the Assurance Centre, as applicable (or where no such process is set out, in the Service Description or the Assurance Centre, by giving not less than thirty (30) days prior written notice).|
|1.7||Zutec shall use reasonable endeavours to meet any performance dates set out in an Order or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence.|
|1.8||If the Customer does not notify Zutec otherwise in writing within a period of five days (or such other period as set out in the Order Terms) from the first Authorised User being given access to a Solution, or if the Solution is found to conform with its Service Description, the Solution shall be deemed accepted.|
|1.9||The Customer acknowledges that Zutec may sub-contract any of its obligations under the Order to a third party (including any Affiliate of Zutec) and Zutec accepts liability for the acts and omissions of any sub-contractors as if they were acts or omissions of Zutec itself.
|2.1||From time to time, Zutec may provide Additional Services as part of an implementation plan or upon Customer’s request (provided that the provision of such Additional Services is agreed in writing in an Order). The description and the rates for these services shall be described in the applicable Order. No work will be performed without a fully executed Order. Unless otherwise stated in the Order, these services are performed based on an hourly rate.|
|2.2||If the Customer requests an on-site visit, the Customer will reimburse Zutec for reasonable, pre-approved, and documented expenses related to travel and lodging.
|3.1||As between the parties, the Customer shall own all rights, title and interest in and to all of the Customer Data and shall at all times have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and for ensuring that its use does not infringe the rights of any third parties (including Intellectual Property Rights).|
|3.2||The Customer hereby grants to Zutec on and subject to the terms of the Order (including these Terms and Conditions) a non-exclusive, non-transferable licence to use the Customer Data for the purpose of providing the Solution and for any requirements ancillary to the provision of the Solution (including any data analytics and service modelling specified in the relevant Service Description). In addition, Zutec may use the Customer Data (other than any Personal Data within the Customer Data) provided that such data is anonymized and aggregated with the equivalent data from Zutec’s other customers such that any Customer Data will not be separately identifiable (the “Anonymised Data“). Zutec may then use such Anonymised Data to provide new products or services to its customers, or to enhance the functionality of the Solution. The Customer acknowledges and agrees that: (i) Anonymised Data is the Confidential Information of Zutec and Zutec owns all Intellectual Property Rights in the Anonymised Data; (ii) Zutec shall be entitled to use the Anonymised Data as part of the in the manner contemplated by this Section 5.2; and (iii) that the rights under this Section 5.2 are irrevocable.|
|3.3||Notwithstanding anything else in the Order (including these Terms and Conditions), the Customer acknowledges and agrees if the Customer is a Contractor of an Asset Owner, if Zutec is requested to do so by an Asset Owner, Zutec may transfer the Asset Data to the Asset Owner for the Asset Owner to access and use for any purpose (or host the Asset Data for the Asset Owner to access and use).|
|3.4||Subject to the provisions of Section 6:
|4.1||In this Section:
|4.2||The Order places obligations on Zutec in relation to Data Protection Legislation where it acts as a Processor of the Customer’s Personal Data. In this regard, the Parties agree to comply with the provisions of this Section 6 in respect of all Personal Data processed by Zutec under the Order.|
|4.3||With respect to the Parties’ obligations under the Order and Data Protection Legislation, the Parties shall give each other such assistance as is reasonable to enable each other to comply with such obligations and both Parties acknowledge that the Customer shall be the Controller and Zutec shall be the Processor.|
|4.4||As required by Article 28(3) of GDPR, the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects shall be as set out in the Annex to the Terms and Conditions.|
|4.5||Where the Processor is required to process Personal Data under the Order, it shall:
|4.6||The Controller warrants, represents and undertakes to the Processor that it has lawful grounds for processing the Personal Data and shall indemnify and keep indemnified the Processor against any liability, fines, claims, demands, expenses and costs (including legal fees) arising as a result of any breach of Data Protection Legislation by the Controller or the Processor acting in accordance with any instruction, policy or procedure of the Controller.|
|4.7||Notwithstanding anything to the contrary in the Agreement if any of the following occur:
|5.1||Zutec will provide the Solution in accordance with the Service Level Arrangements, but makes no representation, and gives no warranty or undertaking, that the operation or availability of the Solution will be uninterrupted or error-free.|
|5.2||The warranty at Section 7.1 shall not apply to the extent of any non-conformance which is caused by the Customer’s breach of the Order, use of the Solution contrary to Zutec’s instructions or modification or alteration of the Solution by any party other than Zutec or the Related Persons.|
|5.3||The Customer acknowledges that Zutec and/or the Related Persons may from time to time carry out routine and emergency maintenance of the Solution. The Customer may be unable to access the Solution during any period in which routine or emergency maintenance is being carried out.|
|5.4||Without limitation to Section 15, the Customer acknowledges that Zutec has no direct control over the availability of bandwidth over the entirety of the internet and that, while Zutec will use such endeavours as Zutec deems appropriate to facilitate the Solution, Zutec shall not be responsible for delays caused by such unavailability.|
|5.5||If Zutec fails to comply with the warranty set out in Section 7.1, it shall use its reasonable endeavours to rectify such failure as soon as reasonably practicable in accordance with the Service Level Arrangements. Zutec’s obligations under this Section 7.5 shall be the Customer’s sole and exclusive remedy in respect of a breach of the warranty set out in Section 7.1.|
|5.6||Except as expressly provided in Section 7.1, the Solution is provided “as is” and to the extent permitted by law, Zutec disclaims all other conditions, warranties or other terms which might have effect between the parties with respect to the Solution, or be implied or incorporated into the Order, whether by statute, common law or otherwise, including any implied conditions, warranties, or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Zutec does not warrant anything in relation to systems that do not make up the Solution or the connection to those systems.|
|5.7||Zutec does not warrant, represent, undertake or agree that: (a) the use of the Solution by the Customer or its Authorised Users will meet the Customer’s requirements nor that any recommendations derived from use of the Solution will deliver any particular benefits if implemented; (b) defects in the Solution will be corrected; or (c) the functions of the Solution will operate in the combinations which the Customer selects for use.|
|5.8||Zutec shall provide the Additional Services with appropriately experienced, qualified and trained professional personnel with reasonable skill and care.|
|5.9||The terms of the Order shall not prevent Zutec from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under the Order.
|6.1||The Customer shall:
|7.1||The Customer shall pay the Fees set out in the Order Terms for the provision of the Solution and any Additional Services.|
|7.2||Zutec shall submit invoices to the Customer for the Fees at the times and in accordance with the procedure specified in the Order Terms.|
|7.3||Not less than forty-five (45) days prior to the commencement of any Renewal Period, Zutec may notify the Customer of the Fees which will be payable by the Customer for that Renewal Period.|
|7.4||In addition to Section 7.3, Zutec may, at any point in time (but not more frequently than once in any calendar year) , increase the Fees (including any rate cards set out in an Order) by the greater of: (i) the percentage increase in the Consumer Price Index since the previous increase of the Fees made under the Order (or where there has been no prior increase, since the Effective Date); and (ii) five per cent (5%).|
|7.5||The Customer shall pay each invoice submitted by Zutec in cleared funds (in the currency specified in the Order Terms) into the bank account nominated by Zutec from time to time within 30 days of the date of the invoice.|
|7.6||All sums due to Zutec under or in relation to the Order are exclusive of any Sales Tax which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the Customer in full at the same time as payment is due under the relevant invoice.|
|7.7||If the Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to Zutec pursuant to the Order and Zutec is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to Zutec will be increased by the amount necessary to yield to Zutec an amount equal to the sum it would have received had no withholdings or deductions been made.|
|7.8||If the Customer fails to make payment in accordance with this Section 9, then Zutec shall be entitled to:
|7.9||Except where expressly stated otherwise in the Order, any Fees paid in accordance with this Section 9 shall be non-refundable in any circumstances including upon early termination of the Order.|
|7.10||The Customer shall provide accurate, current and complete information on the Customer’s billing address and billing contacts, including email address and phone number, and will promptly notify Zutec if this information changes.
|8.1||The Customer acknowledges and agrees that Zutec and/or its licensors (including Zutec’s Affiliates) own all Intellectual Property Rights in the Solution (including any new Intellectual Property Rights which may be created in connection with the provision of the Solution and/or Additional Services under the Order). Except as expressly stated herein, nothing under the Order grants the Customer any rights to, or in, any Intellectual Property Rights in respect of the Solution, the Software or any related Documentation.|
|8.2||Zutec, its Affiliates and their licensors shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use or incorporate into the Solution any enhancement requests provided by the Customer and any Authorised Users so long as the Customer is not identified in any way as the source of such feedback.
|9.1||Each party shall:
|9.2||The Customer may disclose Confidential Information to its Authorised Users, provided that the Customer informs all Authorised Users that the Confidential Information is confidential.|
|9.3||The Receiving Party may disclose any Confidential Information to any regulator, law enforcement agency or other third party if it is required to do so by law, regulation, or similar authority. In those circumstances the Receiving Party shall (to the extent practical and lawful to do so) notify the Disclosing Party in writing as soon as practicable before the disclosure and use all reasonable endeavours to consult with the Disclosing Party with a view to agreeing the timing, manner and extent of the disclosure.|
|9.4||All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in the Order shall (except as expressly agreed otherwise in the Order) operate to transfer, or operate as a grant of any licences or right to use, to any Intellectual Property Rights in the Confidential Information.|
|9.5||The parties’ obligations under this Section 11 shall continue in force notwithstanding the termination or expiry of the Order.|
|9.6||Each party acknowledges that damages alone would not be an adequate remedy in the event of breach by the other party of the provisions of this Section 11. Accordingly, it is agreed that either party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this Section 11 by the other party, without prejudice to any other rights and remedies which that first party may have.
|10.1||The Customer shall defend, indemnify and hold harmless Zutec and the Related Persons against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s or the Authorised Users’ use of the Solution.|
|10.2||The Customer shall promptly notify Zutec of any IPR Claim made or threatened against the Customer.|
|10.3||Subject to the provisions of Section 12.2, this Section 12.3 and Sections 12.4 to 12.6 Zutec shall indemnify and hold harmless the Customer against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with an IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced provided that:
|10.4||If any IPR Claim is made, or in Zutec’s reasonable opinion is likely to be made, against the Customer, Zutec may at its option and expense:
|10.5||Under no circumstances shall Zutec or any Related Persons be liable to the Customer under Section 12.3 or 12.4 (or otherwise) to the extent that the infringement (whether actual or threatened) is based on: (a) any changes, modifications, updates or enhancements made to the Solution other than by Zutec or the Related Persons; (b) any use of the Solution by the Customer or its Authorised Users in a manner contrary to Zutec’s instructions and/or in breach of the Order (including these Terms and Conditions); or (c) the Customer’s or its Authorised Users’ use of the Solution after notice or becoming aware of the actual or threatened IPR Claim.|
|10.6||The provisions of Sections 12.2 to 12.5 inclusive state the entire liability of Zutec to the Customer in connection with an IPR Claim and shall be the Customer’s sole and exclusive remedy in that regard.|
|10.7||Zutec’s liability in relation to an IPR Claim is subject to the limitation set out in Section 13.7.
|11.1||Nothing in the Order, shall operate so as to exclude or limit the liability of either party to the other for:
|11.2||Subject to Sections 5.3, 7.5, 7.6, 12, 13.1 and 15, this Section 13 sets out the entire liability of Zutec and the Related Persons to the Customer:
|11.3||The Customer acknowledges and agrees that:
|11.4||Subject to Section 13.1 and 13.2, neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether tortious or statutory), restitution or otherwise for:
|13.7||Subject to Section 13.1 and 13.2, the total aggregate liability taken of each party (including liability for breach) in contract (including under any indemnities), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising under or in connection with the Order in respect of any and all causes of action arising in each Year shall in no event exceed [the value of the Fees paid or payable by the Customer to Zutec under the Order in that Year (or, if no Fees have been paid or are payable by the Customer to Zutec in a Year, the value of the Fees paid by the Customer to Zutec in the last Year in which Fees were paid by the Customer)]. The limitation of the Customer’s liability under this section 14.7 does not apply to the payment of any Fees by the Customer.|
|13.8||For the purposes of calculating liability pursuant to Section 13.7, where a cause of action arises in a Year and continues across subsequent Years and/or continues after the termination of these Order, then the cause of action shall be deemed to have arisen only in the Year in which such cause of action first arose.|
|14.||TERM, TERMINATION AND SUSPENSION|
|14.7||The Order shall commence on the Effective Date and, unless terminated earlier in accordance with its terms, shall continue in force for the duration of the Initial Term.|
|14.8||The Order shall automatically extend for a Renewal Period unless either party gives at least [thirty (30)] days’ written notice to the other before the expiry of the Initial Term or then current Renewal Period (as applicable), in which case the Order shall terminate at 23:59PM (GMT) on the last day of the Initial Term or then current Renewal Period (as applicable).|
|14.9||Without affecting any other right or remedy available to it, either party may terminate an Order with immediate effect by giving written notice to the other party if:
|14.10||Zutec may terminate an Order with immediate effect by giving written notice to the Customer in the event there is a change of Control of the Customer.|
|14.11||On termination of the Order for any reason:
|14.12||Zutec may suspend the Customer’s right to access the Solution or use any portion or all of the Solution immediately upon notice to the Customer if it determines:
|14.13||Zutec shall reinstate the suspended Solution once it has established the cause of the suspension has been remedied or ceased to exist. Where the cause of the suspension persists for more than thirty (30) days, Zutec may immediately terminate the Order.|
|14.14||Zutec shall have no liability whether under the terms of the Order or at law to the Customer for any exercise of its rights pursuant to Sections 14.7 or 14.8.|
Zutec may refer to the Customer in its marketing materials including any use in any client list, prospectus for investors, press release, advertisement, or any other marketing or promotional material.
Zutec shall not be in breach of the Order nor liable for delay in performing, or failure to perform, any of its obligations under the Order if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Zutec or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, pandemic or epidemic, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances Zutec shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, either party may terminate the Order by giving thirty (30) days’ written notice to the other party.
The failure to exercise, or delay in exercising, a right, power or remedy under the Order or by law shall not constitute a waiver of that right, power or remedy. If a party waives a right, power or remedy arising as a result of a breach of any provision of the Order, this shall not operate as a waiver of any right, power or remedy arising as a result of any subsequent breach of that provision or any other provision of the Order, which will instead require a variation to the Order in accordance with Section 23.
The rights, powers and remedies provided in the Order are (except as expressly provided) cumulative, and not exclusive of, any rights, powers and remedies provided by law or otherwise.
|19.7||If any provision, or part of a provision, of the Order is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of these Terms and Conditions, and the legality, validity or enforceability of the remainder of the provisions of these Terms and Conditions shall not be affected, unless otherwise required by operation of applicable law.|
|19.8||The parties shall use [all] reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Order which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question and with no fundamental change to the bargain between the parties.|
|20.7||An Order (including these Terms and Conditions) constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to that subject matter.|
|20.8||Each party acknowledges that in entering into an Order it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings, misrepresentations or representations that were made by or on behalf of the other party in relation to the subject matter of the Order at any time before its signature (together, “Pre-Contractual Statements”), other than those that are set out expressly in the Order.|
|20.9||Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for Section 20.2.|
|20.10||Nothing in this Section 20 will exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.|
Neither Party may assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with the Order, or with any of its rights or obligations under it, without the prior written consent of the other Party, except that Zutec shall be entitled to assign or transfer an Order to: (i) any of its Affiliates; or (ii) to any third party in connection with any restructuring, reorganisation or merger or acquisition, without requiring the Customer’s prior consent.
|22.||NO PARTNERSHIP OR AGENCY
Nothing in the Order is intended to, or shall be deemed to, establish or constitute any partnership or joint venture between the parties, create a relationship of principal and agent for any purpose between the parties, or authorise either party to make or enter into any commitments for or on behalf of the other party.
Subject to Sections 3.6, 9.3 and 9.4, no variation of the Order shall be effective unless made in writing (which excludes email) and signed by or on behalf of each of the parties or by their duly authorised representatives. If the Customer wishes Zutec to proceed with any proposed variation, Zutec has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Fees and any other relevant terms of the Order to take account of the change.
|24.||THIRD PARTY RIGHTS|
|24.7||A person who is not a party to the Order may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.|
|25.7||Any notice, consent, permission or other communication required to be given under the Order shall be in writing in English and shall be delivered by hand or sent by pre-paid first-class or recorded delivery post to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes.|
|25.8||A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.|
|26.||GOVERNING LAW AND JURISDICTION|
|26.7||The Order, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.|
|26.8||Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Order, or their subject matter or formation.|
Annex – Details of Processing of Controller Personal Data
This Annex specifies certain details of the processing of the Controller Personal Data.
- Subject matter and duration of the processing of Controller Personal Data:
Provision of the services and related technical support for the term of the Order
- The nature and purpose of the processing of Controller Personal Data:
Personal Data may be processed for the purposes of providing the Solution and related technical support. Such processing activities may include collection, storage, alteration, retrieval, consulting and/or erasure
- The types of Controller Personal Data to be processed:
Username, Name, email address and phone number of the Authorised Users
The Customer, acting as the Controller, shall notify Zutec, acting as the Processor, in the event the processing involves other types of Personal Data which are not listed above.
- The categories of Data Subject to whom the Controller Personal Data relates:
Authorised Users of the Solution described in the Order and the personal data of subjects entered into the Solution by the Authorised Users directly or under instruction.