Test 2

BACKGROUND

(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of managing electric vehicle chargepoints.
(B) The Customer wishes to use the Supplier’s service in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s service subject to the terms and conditions of this agreement.

Agreed terms

1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Chargers: those chargers registered by the Customer to be connected to the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Effective Date: the date of set out in the Order Form.
Initial Subscription Term: the initial term of this agreement as set out in the Order Form.
Order Form: the form specifying the details of the Parties, Subscription Fees and Initial Subscription Period, to which this agreement is attached.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 13.1.
Services: the subscription services, including the Software, provided by the Supplier to the Customer under this agreement via the website notified to the Customer by the Supplier from time to time
Software: the online software applications provided by the Supplier as part of the Services, together with any associated documentation.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the Subscriptions, as set out the order form.
Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Subscriptions: the Subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services in accordance with this agreement.
Virus: anything 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.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written excludes fax but not email.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. Subscriptions

2.1 Subject to the Customer paying for the Subscriptions in accordance with clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Chargers to use the Services during the Subscription Term solely for the Customer’s internal business operations.
2.2 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users;
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or
(f) introduce or permit the introduction of, any Virus into the Supplier’s network and information systems.
2.3 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.4 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

3. Additional Subscriptions

3.1 The Customer may, from time to time during any Subscription Term, purchase additional Subscriptions and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.

4. Services

4.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for necessary maintenance, whether planned or urgent.
4.3 The Supplier will, as part of the Services, provide the Customer with the Supplier’s agreed customer support services during Normal Business Hours. The Supplier may amend the customer support services in its sole and absolute discretion from time to time.

5. Data protection

5.1 The Customer and the Supplier will each observe all provisions of the Data Protection Laws.
5.2 The Customer and the Supplier acknowledge that, in respect of any Personal Data which the Company processes on behalf of the Customer in connection with this Contract, the Customer shall be the Data Controller and the Supplier shall be the Data Processor.
5.3 The Supplier shall only collect, process, store, and use Personal Data,:
(a) to the extent that such is necessary for the performance of the Contract and the improvement of the Services;
(b) in accordance with the Customer’s lawful, documented, and reasonable instructions (which shall, unless otherwise agreed, be to process Personal Data to the extent that such is necessary for the performance of the Contract and the improvement of the Services); or
(c) as required to comply with the Data Protection Laws.
5.4 The Customer instructs the Supplier to collect, process, store and use the Personal Data for the purpose as included under clause 5.3 above.
5.5 The Customer hereby consents to the Supplier’s appointment of sub-processors who may from time to time be engaged by the Supplier in support of the Supplier’s provision of the Services to the Customer, including in relation to the outsourcing by the Supplier of the hosting of its data centres to a third party within the United Kingdom or the European Economic Area. The Supplier warrants that such third parties shall be legally bound to their respective obligations under the provisions of the Data Protection Laws as a Data Processor. The Supplier shall notify the Customer annually, upon request, of its sub-processors and if any processing is to take place outside of the United Kingdom or the European Economic Area.
5.6 The Customer may revoke its consent for the Processing of Personal Data in relation to this Contract at any time. Such revocation must be presented to the Supplier in writing and shall not affect the Contract and will leave the Customer’s obligations (including payment obligations) under the Contract intact. The Customer acknowledges that, as a result of such revocation, the Supplier may not be able to provide the Services.
5.7 The Supplier shall implement appropriate technical and organisational measures to protect any Personal Data collected under the Contract against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against all other unlawful forms of processing. Having regard to the state of the art and the cost of their implementation, such measures shall provide a level of security appropriate to the risks represented by the processing and the nature of the data to be protected.
5.8 Upon becoming aware of any unauthorised disclosure of Personal Data, the Supplier shall:
(a) notify the Customer without undue delay; and
(b) co-operate with the Customer and take such reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of that Personal Data breach.
5.9 The Supplier shall:
(a) ensure that its employees and contractors who may have access to the Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
(b) cease processing the Personal Data within 120 days upon the termination or expiry of the Contract or, if sooner, the Services to which it relates and as soon as possible thereafter, either return, or securely wipe from its systems, the Personal Data and any copies of it or of the information it contains. For the avoidance of doubt this shall not apply to the Statistical Data which the Supplier shall be entitled to retain; and
(c) to the extent permitted by law, make available to the Customer such further information and (as applicable) co-operate in the conduct of any audit or review exercise, as the Customer may reasonably require to provide assurance that Supplier are in compliance with the obligations set out in this clause 14, provided always that this requirement shall not oblige Supplier to provide or permit access to information concerning (i) Supplier internal pricing information; (ii) information relating to Supplier’s other customers (including any pricing information); (iii) any of Supplier non-public external reports; (iv) any internal reports prepared by Supplier; (v) any Intellectual Property rights of the Supplier; or (vi) any information which would infringe Data Protection Law. Further a maximum of one audit or review may be activated under this clause in any twelve (12) month period and provided always that the Customer and the Supplier shall (acting reasonably) agree a mutually convenient date for the audit or review to take place.
5.10 The Customer as Data Controller warrants that:
(a) it has all authority and consents necessary to enable the Supplier to process the Personal Data in accordance with the Data Protection Laws for the purposes of this Contract; and
(b) it has complied with and shall, during the Contract, continue to comply with the obligations of a Data Controller under the Data Protection Laws.
5.11 The Customer shall indemnify the Supplier and keep the Supplier indemnified against all claims, demands, actions, proceedings, damages charges, costs and expenses which may be brought against the Supplier in respect of or in connection in any way arising out of or in connection with a breach by the Customer of clause 5.10.
5.12 The Customer and the Supplier acknowledge that they have agreed that the Customer will respond to enquiries from Data Subjects, any governmental and/or judicial body concerning the processing of Personal Data by the Supplier and that the Supplier will, upon request by the Customer, provide reasonable assistance to the Customer for these purposes.

6. Supplier’s obligations

6.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 The Supplier:
(a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free; or
(ii) that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
6.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

7. Customer’s obligations

7.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner; and
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;

8. Charges and payment

8.1 The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 8.
8.2 The Customer shall pay the Subscription Fees, via direct debit, to the Supplier in accordance with this clause and as specified in an applicable Order Form. Unless otherwise specified in the Order Form, payment of all amounts due shall be made by the Customer within 14 days of the date of invoice. The parties agree that the Supplier may perform self-invoicing.
8.3 All Prices payable under a Contract are exclusive of all value-added and other taxes and duties applicable to the supply of the Products and Services which will be payable by the Customer.
8.4 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.5 All amounts and fees stated or referred to in this agreement:
(a) are, non-cancellable and non-refundable;
(b) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
8.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Subscriptions, at the start of each Renewal Period upon 90 days’ prior notice to the Customer.

9. Proprietary rights

9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
9.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

10. Confidentiality

The Customer and the Supplier agree that for the duration of this Contract and for a subsequent period of three years they will at all times keep any Confidential Information of the other Party as confidential and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with this Contract. The provisions of this clause 10 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of this Contract or disclosures of Confidential Information that are:
(a) required by law or regulation in response to a request from a law enforcement or regulatory body or authority;
(b) made in connection with a court order or other similar demand;
(c) made in connection with a contemplated merger, acquisition or similar transaction;
(d) made to an Affiliate or company related to the Supplier; or
(e) made to the Supplier’s service providers for delivering the Services, on behalf of the Supplier.

11. Indemnity

11.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 The foregoing is the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12. Limitation of liability

12.1 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.2 Subject to clause 12.1:
(a) the Supplier shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited the total Subscription Fees paid for the Subscriptions during the 12 months immediately preceding the date on which the first claim arose.
12.3 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights”.

13. Term and termination

13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30days after being notified in writing to do so;
(c) any of the following events occur: (i) the presentation of a petition for winding up of the Customer; (ii) the Customer is the subject of an order or an effective resolution is passed for winding up the Customer; (iii) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Customer; (iv) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the Customer; (v) the Customer making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (vi) the Customer goes into liquidation; (vii) the Customer becoming unable to pay its debts or otherwise becoming insolvent, or (viii) the Customer ceasing, or threatening to cease, to carry on business; or
(d) there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three months.
13.3 On termination of this agreement for any reason:
(a) the Customer shall immediately cease all use of the Services;
(b) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession; and
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

14. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

15. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. Waiver

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

17. Severance

17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
17.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. Entire agreement

18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

19. Assignment

19.1 The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

21. Counterparts

This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

22. Notices

22.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in the Order Form
22.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

23. Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.

24. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).