TERMS AND CONDITIONS FOR MX AND/OR MX+

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those external third parties chosen by the Customer and agreed in writing by the Supplier who shall be entitled to use the Exchange under this agreement, and as further set out in clause 2.2.
Business Day: any day which is not a Saturday, Sunday or public or bank holiday in the UK.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or sub-contractors involved in the provision or receipt of the Services who need to know the confidential information in question (Representatives) to the other party and that party's Representatives in connection with this agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Customer: the person, firm or company who purchases the Services from the Supplier.
Customer Data: any data and content stored or transmitted via the Services by the Customer or Authorised Users.
Effective Date: the date of this agreement.
Exchange: the Supplier's data exchange service known as MX and/or MX+ accessible through cloud storage which is hosted by the Supplier or a third party on its behalf via a secure login, details of which will be provided by the Supplier.
Fees: the fees payable to the Supplier, as described in the Proposal.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Proposal: the Supplier's quotation for the Services, as set out in the Schedule.
Service Level Agreement: the service level agreement provided by the Supplier.
Services: the use of the Exchange and any Customer software.
Supplier: Majenta Solutions Limited (Company No: 3056978) whose registered office is at Majenta House, Coptfold Road, Brentwood, Essex CM14 4BS.
1.2 Clause and Schedule headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to writing or written includes faxes and e-mail.
1.8 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

2. SERVICES

2.1 The Customer may access and use the Services made available by the Supplier under this agreement. The Service Level Agreement shall apply with effect from the Effective Date.
2.2 In relation to Authorised Users:
(a) the Customer's access to the Exchange shall be limited to the number of individual Authorised Users as set out in the Proposal;
(b) the Customer shall ensure and be responsible for:
(i) it and each Authorised User keeping and maintaining the confidentiality of secure passwords for its use and the Authorised User's use of the Exchange; and
(ii) managing access to the Exchange;
(c) the Supplier may audit the number of Authorised Users of the Exchange from time to time. Such audit shall be exercised with reasonable prior notice and in a manner so as to not substantially interfere with the Customer's normal conduct of business. If such audit reveals that passwords have been provided to persons or companies who are not Authorised Users, and without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such persons or companies;
(d) the Customer shall represent and procure that Authorised Users' access to the Exchange is in strict compliance with the terms and conditions of this agreement;
(e) the Customer will obtain and maintain any consents from Authorised Users to allow the Supplier to provide the Services set out in this agreement;
(f) the Customer will, at its own expense, respond to questions and complaints from Authorised Users or third parties relating to use of the Services. The Customer shall use its reasonable endeavours to resolve support issues before escalating them to the Supplier.
2.3 In relation to the Exchange the Customer shall not:
(a) sell, resell or lease the Services; or
(b) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Exchange; or
(c) use the Services for activities where use or failure of the Services could lead to physical damage, death or personal injury.

3. CUSTOMER DATA

3.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.2 Subject to the terms set out in this agreement, in the event of any loss or damage to Customer Data caused by the negligence or wilful damage by the Supplier's employees, contractors or agents, the Supplier shall use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data, and the Supplier shall be responsible for the reasonable costs of input material, data reconstruction and reloading. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
3.3 If the Supplier transfers, processes and/or stores any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully transfer, process and store the personal data in accordance with this agreement on the Customer's behalf;
(b) the Supplier shall transfer, process and/or store the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
(c) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4. SUPPLIER'S OBLIGATIONS
4.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.
4.2 The Supplier warrants that it holds all necessary licences, permits and consents to provide the Services.
4.3 The Supplier may update the Services from time to time. If the Supplier changes the Services in a manner that materially reduces their functionality the Supplier will inform the Customer.
4.4 The Supplier may impose reasonable limitations on bandwidth usage for the Services.
4.5 The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Exchange contrary to the Supplier's instructions, or modification or alteration of the Exchange by any party other than the Supplier or the Supplier's duly authorised contractors or agents. The Services are provided 'as is'. Subject to the restrictions set out in this agreement if the Exchange does not conform with the material terms of this agreement, the Supplier will, at its expense, use commercially reasonable efforts to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Subject to clause 10.3, such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the terms of this agreement. Notwithstanding the foregoing, Supplier does not warrant that the Customer's use of the Exchange and the Services will be uninterrupted or error-free.
4.6 This agreement shall not prevent the Supplier 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 this agreement.

5. CUSTOMER'S OBLIGATIONS

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 render the Services, including but not limited to Customer Data, security access information and, where applicable, software interfaces to the Customer's other business applications;
(b) provide such personnel assistance, as may be reasonably requested by the Supplier from time to time;
(c) comply with all applicable laws and regulations with respect to its activities under this agreement; and
(d) carry out all other Customer responsibilities set out in this agreement or the Proposal in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary.

6. CHARGES AND PAYMENT

6.1 The Customer shall pay the amounts (without deduction or set off) in full as set out in the Proposal (Charges).
6.2 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
6.3 Time for payment shall be of the essence of this agreement.
6.4 The Supplier shall invoice the Customer at the time of placing the order for all Services to be provided or performed by the Supplier. Each invoice is due and payable 30 days after the invoice date. If the Supplier has not received payment within five days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
(b) interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of Barclays Bank plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment; and
(c) terminate the agreement or suspend any further availability of the Exchange to the Customer.
6.5 The Supplier may without prejudice to any other rights it may have to set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.6 The Supplier may vary and increase the Charges from time to time by giving not less than 30 days' written notice to the Customer.
6.7 Without prejudice to the provisions of clauses 6.5 and 6.6, in the event of the Supplier suffering an increase in the costs borne by it to the provision of the Services for reasons outside the Supplier's control (including the introduction or implementation of any law, statute, decision, regulation or directive which has the effect of increasing the Supplier's costs), the Supplier shall be entitled to increase its charges by an equivalent amount.
6.8 All payments payable to the Supplier under this agreement shall become due immediately on termination of this agreement, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under this agreement.

7. PROPRIETARY RIGHTS

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

8. CONFIDENTIALITY

8.1 The term Confidential Information does not include any information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 8);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
(d) was known to the receiving party before the information was disclosed to it by the disclosing party; or
(e) the parties agree in writing is not confidential or may be disclosed.
8.2 Each party shall keep the other party's Confidential Information confidential and shall not:
(a) use any Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or
(b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
8.3 A party may disclose the other party's Confidential Information to those of its Representatives who need to know that Confidential Information for the Permitted Purpose, provided that:
(a) it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for the Representatives' compliance with the confidentiality obligations set out in this clause 8.
8.4 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
8.5 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information, other than those expressly stated in this agreement, are granted to the other party, or are to be implied from this agreement.
8.6 The provisions of this clause 8 shall continue to apply after termination of this agreement.

9. INDEMNITY

9.1 The Customer shall defend, indemnify and hold harmless the Supplier from and against all claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court and settlement costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Exchange or Services, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
9.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim by a third party against the Customer to the extent that the Exchange infringes any copyright, 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 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.
9.3 In the defence or settlement of the claim, set out in clause 9.2 the Supplier may obtain for the Customer the right to continue using the Exchange, replace or modify the Exchange so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement without liability to the Customer. In no event will the Supplier have any obligations or liability under this agreement arising from:
(a) a modification of the Exchange by anyone other than the Supplier; or
(b) the Customer's use of the Exchange or the Services in a manner contrary to the instructions of the Supplier; or
(c) use of the Exchange or Services in combination with materials not recommended by the Supplier; or
(d) any content, information or data provided by the Customer, Authorised Users or other third parties; or
(e) the Customer's use of the Exchange or the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
9.4 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

10. LIMITATION OF LIABILITY

10.1 This clause 10 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Exchange, the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
10.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Exchange and the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
10.3 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.
10.4 The Service Level Agreement states the Customer's full and exclusive right and remedy, and the Supplier's only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.
10.5 Subject to clause 10.3 and clause 10.4:
(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, incidental, exemplary, punitive or consequential loss costs, damages, charges or expenses however arising under this agreement even if such loss was reasonably foreseeable; 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 to the price paid for the Services during the 12 months preceding the date on which the claim giving rise to the liability arose.

11. TERM AND TERMINATION

11.1 This agreement shall commence on the Effective Date and shall continue for the period set out in the Proposal (Initial Term), unless otherwise terminated as provided in this clause 11.
11.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.3 On termination of this agreement for any reason:
(a) all licences and rights granted by the Supplier under this agreement shall immediately terminate;
(b) all licences and rights granted to the Authorised Users shall immediately terminate;
(c) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

12. FORCE MAJEURE

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications, internet disturbance, electrical or any other third party services, failure of hardware or network components, virus attacks, or hackers, failure of third party software (including without limitation, ecommerce software, payment gateways, chat, statistics or free scripts), delays due to dependence on third parties, or inability to obtain raw materials, supplies, or power used in or equipment needed for the provision of this agreement.

13. WAIVER

13.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
13.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

14. SEVERANCE

14.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

15. ENTIRE AGREEMENT

15.1 This agreement, and the Service Level Agreement, and any documents referred to in it, constitutes the whole agreement between the parties and supersedes any previous arrangements, understandings or agreements between them relating to the subject matters they cover.
15.2 This agreement shall prevail over any inconsistent terms or conditions contained in the Customer's purchase order, confirmation of order, or specification or implied by law, trade custom, practice or course of dealing.
15.3 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

16. ASSIGNMENT

16.1 Except in respect of an assignment of either party's entire business and assets to a third party, neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with any of its rights or obligations under this agreement.
16.2 The Supplier may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent acting on the Supplier's behalf.

17. NO PARTNERSHIP OR AGENCY

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

18. VARIATION

18.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.2 No employee, subcontractor or agent of the Supplier has any authority to add to or vary this agreement or to make any representation or warranty unless such addition or variation or representation or warranty is in writing and signed by a duly authorised representative of the Supplier.

19. 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.

20. NOTICES

20.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
20.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 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. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). For the purposes of this clause 'writing' shall not include e-mail.

21. GOVERNING LAW AND JURISDICTION

21.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
21.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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