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Customer Terms

1. Definitions and Interpretation 

1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Account”

means each account created by a User to access the Service;

“Admin User”

means a representative(s) of the Customer who manages and controls the Services through the Dashboard; 

“Agreement”

means these Customer Terms, and any documents referenced in these Customer Terms and all Order Forms;

“Ambassador”

means a member, student, employee or representative of the Customer who has downloaded the Mobile App and is authorised to use the Services;

“Business Day”

means any day other than Saturday or Sunday that is not a bank or public holiday in England;

“Career Points”

means rewards (that have no cash value) and that are earned by Ambassadors through performing activities on the Service; 

“Change”

means any change in the scope of Services as agreed between the parties in writing from time to time;

“Commencement Date”

means the date as set out in the applicable Order Form;

“Content”

means any and all images, videos, text, data and any other materials uploaded to the Service by any User;

“Controller”

has the meaning set out in Data Protection Law;

“Cookie”

means a small text file placed on the User’s computer or device when visiting certain parts of and/or using certain features of the Service;

“Cookie Data”

means any data (including Personal Data) collected via Cookies or other similar technologies placed on the User’s device;

“Customer”

means the customer identified as such in the Order Form;

“Dashboard”

means the website made available at dashboard.theambassadorplatform.com;

“Data Protection Law”

means all applicable data protection laws including the General Data Protection Regulation (EU) 2016/679 (“GDPR”), read in conjunction with and subject to the Data Protection Act 2018, in each case as amended, re-enacted or replaced from time to time;

“Data Subject”

has the meaning set out in Data Protection Law;

“Fees”

means the fees as set out in the Order Form;

“Intellectual Property Rights”

means patents, copyright and related rights, trademarks, trade names and domain names, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

“Initial Term”

means the initial term as set out in the Order Form;

“Mobile App”

means the Service Provider’s mobile application used by Ambassadors to create Content;

“Order Form”

means the applicable order form as agreed between the Service Provider and Customer in accordance with clause 2;

“Personal Data”

has the meaning set out in Data Protection Law;

“Processor”

has the meaning set out in Data Protection Law;

“Processing”

has the meaning set out in Data Protection Law and “process” and “processed” shall be construed accordingly;

“Renewal Term”

means the renewal term set out in the Order Form;

“SaaS Infrastructure”

means the software and data of the Service delivered to the Customer as a service via a cloud hosting provider; 

“Service(s)”

means the service(s) to be provided by the Service Provider to the Customer as set out in the Order Form; 

“SLA”

means the service level agreement available at [https://legal.theambassadorplatform.com/service/service-level-agreement]; 

“Customer Terms”

means these terms and conditions which may be varied in accordance with clause 2.4;

“Term”

means the Initial Term and the Renewal Term;

“Third Party User”

means a person who engages with an Ambassador as part of the Service, via the Customer’s website (“Site”); 

“Users”

means each of the Admin Users, Ambassadors, and Third Party Users; and

“Virus”

any thing or device (including any software, code, file or programme) that may: a) 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 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 b) adversely affect the user experience of the Services, including worms, trojan horses, viruses and other similar things or devices.

1.2 Unless the context otherwise requires, each reference in this Agreement to:

1.2.1 “writing”, and any cognate expression, includes a reference to any communication affected by e-mail;

1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

1.2.3 any word or phrase introducing the words “including” or “include” or any similar word or expression is illustrative and is not intended to limit the meaning of the related general words;

1.2.4 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done. 

1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 In the case of conflict or ambiguity between any provision contained in the body of these Customer Terms and any provision contained in any related document referred to in this Agreement or Order Form, the conflict shall be resolved according to the following order of precedence: 

1.5.1 the Order Form in relation to the Services to be performed under that Order Form.

1.5.2 these Customer Terms; and

1.5.3 the separate document or policy.

2. Order Form Process 

2.1 This Agreement governs the overall contractual framework between the parties in relation to the Services provided by the Service Provider to the Customer.

2.2 For each Service the Customer orders under this Agreement, the Service Provider will prepare an Order Form which shall set out a description of the Services and specify the Fees and any additional terms applicable to the provision of the Services.

2.3 Each Order Form shall be part of, and governed by these Customer Terms.

2.4 Any amendments to these Customer Terms must be agreed by the Service Provider and the Customer in writing, and shall (unless otherwise agreed in writing) be deemed to apply to all future Order Forms entered into after the date of such amendment.

2.5 The Customer may request a Change during the relevant Term by submitting a written request to the Service Provider for approval at its sole discretion.

2.6 If any Change is agreed between the parties then the relevant Order Form shall be amended and such Change shall only become effective once the amended Order Form reflecting the Change has been signed by both parties.

2.7 No Order Form shall enter into force or be legally binding until it has been signed by both parties.

3. Term 

3.1 This Agreement shall commence on the Commencement Date and shall continue until terminated in accordance with clause 3.2, 3.4 or 16.

3.2 The Order Form shall continue for the Initial Term and renew for the applicable Renewal Term(s) in accordance with the terms of such Order Form, unless terminated earlier in accordance with clause 16.

3.3 Subject to the remainder of this clause 3.3, on termination or expiry of any Order Form all other Order Forms then in force shall remain in force.

3.4 To the extent that there are no Order Forms in force either party may terminate this Agreement on 30 days’ written notice to the other party and the parties shall not enter into any further Order Forms after the date on which such notice to terminate is served.

3.5 On termination or expiry of this Agreement for any reason all Order Forms then in force shall terminate with immediate effect.

4. Fees and Payment

4.1 The Service Provider shall issue an invoice to the Customer within 30 days either side of the Commencement Date.

4.2 The Customer shall pay all invoices in full within 30 days of the date of issue of the applicable invoice from the Service Provider and time for payment shall be of the essence.

4.3 If the Customer does not pay all Fees due within the time specified in clause 4.2 above:

4.3.1 the Service Provider may suspend the Customer’s and all Users’ use of the Service until the Customer pays all outstanding sums in full; and

4.3.2 the Customer shall pay interest on the overdue sum from and including the due date until payment is made in full, both before and after any judgment, at 4% per annum over the Bank of England base rate from time to time.

4.4 Unless agreed as a Change between the parties in accordance with clause 2.5 and 2.6, any new features and services which the Service Provider makes available from time to time shall be charged for in addition at the Service Provider’s standard rates then in force (or as is otherwise agreed between the parties).

4.5 The Service Provider reserves the right to increase Fees on an annual basis with effect from the anniversary of the Commencement Date following the expiry of the Initial Term in line with the percentage increase in the Retail Prices Index in the preceding 12 - month period.

5. Grant of Rights

Subject to the Customer’s compliance with the terms and conditions of this Agreement, the Service Provider hereby grants the Customer a non-exclusive, non-transferable right without the right to sub-licence, to access and use the Services, and permit Users’ to access and use the Services, for purposes in line with that of the Service Description and subject always to use in accordance with the Acceptable Use Policy.

6. Security

6.1 The Service Provider shall ensure that at all times the Service is managed and hosted securely, including the following measures.

6.1.1 appropriately sized computer and storage resource within a leading cloud provider facility within the UK or EEA;

6.1.2 the ability to re-deploy the Service from a backup taken which is less than 24 hours old within 2 hours;

6.1.3 server access via SSH restricted to local IP address and database access only from server; and

6.1.4 passwords saved in an encrypted format.

6.2 Subject to clause 13, the Service Provider shall ensure daily backups of all data on the application server are taken.  All platform data shall be stored in the UK or EEA by leading cloud or service providers.

7. Maintenance

7.1 The Service Provider shall use reasonable endeavours to ensure that all maintenance and upgrades to its systems and the SaaS Infrastructure through which the Service is provided (which may from time to time be required) take place in good time so as to enable the Service Provider to provide the Service in accordance with this Agreement.

7.2 Subject to the provisions of the Service Level Agreement, the Customer shall be responsible for all maintenance and upgrades to the Customer’s computer systems which may from time to time be required.

7.3 The Service Provider shall use its reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however, the Customer acknowledges that advance notice may not always be possible.

8. Service Terms of Use

8.1 Ambassadors must access the Service via the Mobile App.  All Ambassadors’ use of the Service via the Mobile App is subject to their compliance with the Service Provider’s Mobile App Terms of Service (as the same are in force from time to time).

8.2 Admin Users have access to manage the Service and Ambassadors on the Service via the Dashboard. Admin Users shall access the Service by means of an account login by email on an approved institutional domain and password.

8.3 Each Admin User will be given access to the Dashboard via a unique login for their Account. All Admin users use of the Dashboard is subject to their compliance with the Service Provider’s Admin User Terms (as the same are in force from time to time).

8.4 Subject to clause 8.5, and in accordance with any Customer or Service Provider policies or instructions, the Admin Users shall be entitled to make changes and carry out other necessary administrative functions to the Customer’s Dashboard in relation to the Service only.

8.5 The Customer shall use reasonable endeavours to procure that each Admin User and Ambassador shall keep a secure password for their access to the Dashboard and/or Services and shall keep their password confidential at all times.

8.6 The Customer shall use reasonable endeavours to procure that no Admin User or Ambassador does or omits to do anything that shall adversely affect the Service or cause, or have the potential to cause, the Customer and/or Service Provider to breach any of its obligations under this Agreement including without limitation any Data Protection Law.

8.7 The Customer shall be liable to the Service Provider in the event that the Customer and/or any Admin User or Ambassador accesses, stores, distributes or transmits any Viruses, or any material during the course of use of the Services that is otherwise illegal or causes damage or injury to any person or property or in the event that any Admin User or Ambassador breaches the Acceptable Use Policy.

8.8 The Customer shall, and shall use reasonable endeavours to procure that its Admin Users and Ambassadors, use the Service in accordance with the terms of this Agreement including the Acceptable Use Policy, the Admin User Terms of Service, Safeguarding Policy, and Mobile App Terms of Service (as applicable). The Customer acknowledges that the Service Provider may monitor its use of the Service (including its Admin Users and Ambassadors).

8.9 The Customer may only access the Services detailed in the Order Form.  No access to other parts of the SaaS Infrastructure shall be permitted in the absence of express written permission from the Service Provider.

8.10 The Service Provider is responsible for safeguarding processes as described in the Safeguarding Policy. The Customer is responsible for monitoring and evaluating potential safeguarding incidents that get reported through those processes.

8.11 The Customer must notify the Service Provider if it becomes aware of any breaches of this Agreement due to its actions or omissions, or those of any Admin User or Ambassador. Service Provider is entitled to suspend the Customer’s and Users’ use of the Service until the Customer remedies such breaches.

8.12 The Customer shall ensure that it complies with any applicable laws, rules or codes applicable to it when accessing or using the Service and it shall be the Customer’s sole and exclusive responsibility to ensure such compliance.

8.13 The Customer shall not 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:

8.13.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or SaaS Infrastructure in any form or media or by any means;

8.13.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SaaS Infrastructure;

8.13.3 access all or any part of the Services in order to build a product or service which competes with the Services;

8.13.4 use the Services to provide services to third parties;

8.13.5 remove any titles, trademarks, trade names, copyright, restricted rights and other proprietary notices of the Service Provider from documentation provided by the Service Provider;

8.13.6 subject to clause 19, 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 Users; or

8.13.7 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Agreement.

8.14 When editing Content or FAQ answers, the Customer may make reasonable edits and alterations to the Content (and in the case of images and footage, retouching). Notwithstanding the foregoing, the Customer will use its best endeavours to ensure that the Content is used accurately and honestly and that it is not used out of context.

8.15 The Service Provider is not responsible in any way for the management, reward or remuneration of Ambassadors.

8.16 The Customer may create its own competitions to incentivise Ambassadors provided that, at all times, the Customer ensures that any competitions or prize draws related to the Content requests are “free prize draws” (and are not regulated by the Gambling Act 2005 or any applicable laws or regulations including any applicable consumer legislation). The Customer acknowledges that it is solely responsible for such competitions including allocating any applicable prizes to Ambassadors.

8.17 The Customer shall not make available any false or fake profiles or Content to represent itself. Every profile and all Content must honestly depict a legitimate student, staff or alumni representative that the Customer wants to make available.

8.18 Both parties may activate and deactivate Ambassadors from the Service in the Dashboard. Deactivated ambassadors will not be able to access the messaging area of the Service and will not be able to receive any Career Points. The Customer shall ensure that whenever it suspends an Ambassador, that any such suspension is reasonable, lawful, non-discriminatory and carried out in strict accordance with any terms and conditions it may have with the relevant Ambassadors.

8.19 Notwithstanding clause 12, the Service Provider may refer to the Customer as a customer of the Service Provider on its website (including use of the Customer’s logo), and will notify the Customer in writing in advance of such proposed use. Any other use outside of use on the website (for example in other marketing materials) will require approval in advance in writing by the Customer.

9. Customer Services Support

9.1 The Service Provider shall provide the Customer Support Services as described in the Order Form. 

10. Intellectual Property

10.1 The Customer acknowledges and agrees that the Service Provider and/or its licensors own all Intellectual Property Rights subsisting in the Service and the SaaS Infrastructure, including any supporting software and documentation.  For the purposes of this clause 10, “Services” and “SaaS Infrastructure” along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented. Except as expressly stated herein, this Agreement does not grant the Customer, or any User, any rights to, under or in, any Intellectual Property Rights in respect of the Services and SaaS Infrastructure.

10.2 It is the intention of the Service Provider that all Intellectual Property Rights subsisting in the Content provided by the Ambassadors (excluding Content provided by Third Party Users, Admin Users and any other third party) shall belong to the Customer. The Customer acknowledges that its ownership of such Content is conditional on the Ambassador entering into and agreeing to be bound by the Mobile App Terms of Service. The Customer is solely responsible for ensuring each Ambassador does so enter and agree to be bound by the Mobile App Terms of Service.

10.3 Subject to clause 10.2, the Service Provider may:

10.3.1 with the Customer’s prior consent, use the Customer’s Ambassadors’ Content to promote the Customer to communities of prospective students that are managed by the Service Provider and its affiliate partners; and

10.3.2 use the Customer’s Ambassadors’ Content (which has been anonymised and aggregated) for analytical purposes for the benefit of providing the Service Provider’s business and platform.

10.4 The rights and permissions set out in this clause 10 expire on termination of this Agreement, after which the Service Provider will cease using the Customer’s Content for the purposes set out in this clause and/or any other purpose.

10.5 The Customer shall not either during the term or after the expiry of this Agreement permit or cause to occur any infringement of any Intellectual Property Rights covered by this clause 10.  Use of the Service by the Customer and its employees, contractors or agents shall be only within the terms of this Agreement. Where the Customer either suspects or is aware of any breach of Intellectual Property Rights covered by this clause 10 it shall be under a duty to inform the Service Provider of such breach immediately.

10.6 Certain Customer Data may belong to other third parties.  In such cases, the Customer warrants that it and/or its licensors own all the Intellectual Property Rights to the data it inputs into the Service. Subject to clause 11, when Third Party Users engage with a Customer through direct messaging as part of Service, the Customer shall get access to and be able to use that Third Party User’s data.

10.7 Subject to clause 11.6, direct message conversations will be stored and available on the Service for a minimum period of one year, after which the Service Provider may remove such conversations from being visible on the Service. Direct message conversations may be anonymised and aggregated by the Service Provider. Once anonymised and aggregated, the Service Provider shall have the right to use such anonymised and aggregated data for analytics which may be used for marketing purposes and for the purpose of delivering the Service Provider’s services and platform.

11. Data Sharing 

11.1 Each party shall comply at all times with Data Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law.

11.2 In the context of this Agreement, the Service Provider will, except as stated in clause 11.6, act as “Processor” to the Customer who will act as a “Controller” with respect to the Personal Data. Notwithstanding the foregoing, the parties acknowledge that where Personal Data is not accessible to the Service Provider it shall not be a Processor and therefore the obligations of clause 11.5 shall not apply to the Service Provider.

11.3 Each party acknowledges that to the extent the Service Provider is acting in its capacity as a Processor the factual description of the subject-matter, duration of the processing, the nature and purpose of the processing, the type of personal data and the categories of data subjects shall be as set out in an Order Form. To the extent that the foregoing is not set out in the Agreement and/or Order Form, the Customer shall provide the necessary information to the Service Provider in writing, promptly and before receipt of the Service.

11.4 Without prejudice to clause 11.1, the Customer represents, warrants and undertakes to the Service Provider that with respect to any Personal Data Processed pursuant to this Agreement:

11.4.1 it has provided fair processing information to the relevant Data Subjects;

11.4.2 the Customer has obtained all the necessary consents from Data Subjects in a manner compliant with the Data Protection Law or another lawful ground to Process the Personal Data and to outsource the Processing of any Personal Data to the Service Provider and the Customer covenants that it shall notify the Service Provider in writing if there are any material changes to these consents or to the Personal Data that the Service Provider Processes under this Agreement; and

11.5 Where the Service Provider Processes Personal Data on behalf of Customer as its Processor, with respect to such Processing, the Service Provider shall:

11.5.1 Process the Personal Data only in accordance with this Agreement and the documented instructions of the Customer given from time to time. The Customer acknowledges that the Service Provider is under no duty to investigate the completeness, accuracy or sufficiency of such instructions and any additional instructions outside the scope of this Agreement require prior written approval between the Service Provider and Customer (including agreement on any fees payable by Customer to the Service Provider for carrying out such instructions);

11.5.2 only permit the Personal Data to be Processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on the Service Provider’s instructions in relation to the Processing;

11.5.3 protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected (and the Customer shall notify the Service Provider immediately if the nature of such Personal Data changes in a material way);

11.5.4 the Service Provider is generally authorised to appoint third party sub-processors. Where the Service Provider appoints a third party sub-processor, it shall, with respect to data protection obligations:

(a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as the Service Provider; and

(b) remain fully liable to Customer for all acts and omissions of the third party,

and all sub-processors engaged by the Service Provider as at the Effective Date shall be deemed authorized;

11.5.5 in addition to the sub-processors engaged pursuant to clause 11.5.4 (above), be entitled to engage additional or replacement sub processors, subject to:

(a) the provisions of clause 11.5.4(a) and 11.5.4(b) being applied; and

(b) the Service Provider notifying the Customer of the additional or replacement sub-processor,and where Customer objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;

11.5.6 notify Customer without undue delay after becoming aware that it has suffered a Personal Data breach;

11.5.7 at Customer’s cost and not more than once in any 12 month period permit Customer (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit (on reasonable notice) the Service Provider’s data Processing activities to enable Customer to verify and/or procure that the Service Provider is complying with its obligations under clause

11.1. Customer shall ensure that its adheres to any applicable the Service Provider site and security policies in the performance of such audit or inspection;

11.5.8 on Customer’s reasonable request, assist Customer to respond to requests from Data Subjects who are exercising their rights under the Data Protection Law (insofar as it is reasonable for the Service Provider to do so);

11.5.9 not Process Personal Data outside the EEA, save for where the Service Provider has ensured that adequate protections and safeguards are in place to protect the Personal Data as required under Data Protection Law or where the recipient countries have been deemed by the European Commission to be providing an adequate level of protection pursuant to the relevant provisions of Data Protection Law; 

11.5.10 on Customer’s reasonable request, assist (insofar as it is reasonable to do so, taking into account the nature of the information available to the Service Provider and any restrictions on disclosing the information, such as confidentiality) Customer to comply with the Customer’s obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Data Protection Law), comprising (if applicable):

(a) notifying a supervisory authority that Customer has suffered a Personal Data breach; (b) communicating a Personal Data breach to an affected individual; (c) carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and

11.5.11 unless applicable law requires otherwise, upon termination of the Agreement delete or return (as specified by the Customer) all Personal Data provided by Customer to the Service Provider (except to the extent this is not reasonably technically possible or prohibited by law). Subject to the foregoing, the Customer agrees that the Service Provider is entitled to delete any accounts on its Service after 36 months of inactivity. The Customer further agrees that Service Provider is entitled to delete any personal data associated with a deleted account within 3 days of such account being deleted.

11.6 The Customer acknowledges that the Service Provider shall be an independent Controller only where:

11.6.1 it processes Personal Data so that it becomes anonymised and/or aggregated data. The Customer further acknowledges that Service Provider may use any anonymised and/or aggregated data for its own purposes and disclose that anonymised and/or aggregated to any third party (including the Customer) at its sole discretion; and

11.6.2 the Service Provider is collecting Cookie Data via Cookies or other similar technologies owned by the Service Provider in connection with the provision of the Service.

11.7 Where under this clause 11, Service Provider is obliged to provide assistance to Customer, or to third parties at the request of Customer (including submission to an audit or inspection and/or the provision of information), such assistance shall be provided at the sole cost and expense of Customer, unless such cost of assistance directly arises from Service Provider’s breach of its obligations under this clause 11.

12. Confidentiality

12.1 Each party shall keep secret and confidential all information disclosed to it (whether in writing, verbally or otherwise) under or in connection with this Agreement which is of a confidential or proprietary nature. 

12.2 The receiving party shall not use, disclose, exploit, copy or modify such confidential information except for the purposes of the proper performance of this Agreement or with the prior written consent of the other party.  Any such disclosure shall be made subject to obligations equivalent to those set out in this Agreement.

12.3 The obligations of confidence referred to in this clause 12 shall not apply to any confidential information that:

12.3.1 is in the possession of and is at the free disposal of the receiving party or is published or is otherwise in the public domain prior to its receipt by the receiving party;

12.3.2 is or becomes publicly available on a non-confidential basis through no fault of the receiving party;

12.3.3 is required to be disclosed by any applicable law or regulation; or

12.3.4 is received from a third party who was entitled to disclose the same.

12.4 The obligations of the parties under all provisions of this clause 12 shall survive the expiry or the termination of this Agreement irrespective of the reason for such expiry or termination.

13. Liability 

13.1 Nothing in this Agreement shall limit either party’s liability for:

13.1.1 death or personal injury resulting from its negligence;

13.1.2 fraudulent misrepresentation; or

13.1.3 any liability which cannot be excluded by law.

13.2 Nothing in this clause 13 shall limit the Customer’s payment obligations under this agreement.

13.3 The Service Provider expressly disclaims all warranties and makes no representations that the Services or any part thereof will be error free or will operate without interruption or will be compatible with any other systems, facilities, software, equipment or hardware.

13.4 Except as expressly set forth in this Agreement, all conditions, warranties and other terms and all representations expressed or implied by statute, common law or otherwise with respect to the Services are excluded to the fullest extent permitted by law.

13.5 Subject to clause 13.1, in no event shall the Service Provider be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, or otherwise for any:

13.5.1 loss of revenue;

13.5.2 loss of actual or anticipated profits (including for loss of profits on contracts);

13.5.3 loss of anticipated savings;

13.5.4 loss of sales or business;

13.5.5 loss of operating time or loss of use;

13.5.6 loss of opportunity;

13.5.7 loss of or damage to goodwill or reputation;

13.5.8 any indirect or consequential loss or damage howsoever caused.

13.6 Except as stated in clause 13.1 and 13.5, the maximum aggregate liability of either party to the other under or in connection with this Agreement and any Order Form, whether in contract or tort (including negligence and negligent misstatement) or for misrepresentation, breach of statutory duty or otherwise arising under or in connection with each Order Form shall not exceed the Fees paid or payable under the relevant Order Form.

14. Indemnity

14.1 The Customer shall be responsible for (and the Service Provider will not be liable for) the following:

14.1.1 the Customer’s misuse of the Services, SaaS Infrastructure or the Customer’s misuse of any other element of the Service;

14.1.2 the acts or omissions of any Admin User and/or Ambassadors;

14.1.3 use of the Services contrary to the Service Provider’s instructions or not in accordance with this Agreement;

14.1.4 any modification or alteration of the Services by any person other than the Service Provider or its duly authorised contractors or agents;

14.1.5 any errors or omissions in information and/or instructions provided to the Service Provider by or on behalf of the Customer in connection with the Services, or any actions taken by the Service Provider at the Customer’s direction;

14.1.6 the Customer’s breach of the Service Provider’s Acceptable Use Policy; or

14.1.7 the Customer’s negligence or other act of default.

14.2 Subject to the matters set out in clause 14.1 for which the Customer shall remain liable, the Service Provider shall indemnify the Customer and keep the Customer indemnified against any and all direct losses, damages, liabilities, claims and costs that the Customer may suffer or incur as a result of any claim that the Customer’s use of the Services, in accordance with this Agreement, infringes copyright.

15. Force Majeure

Neither party shall be liable to the extent that it is delayed in or prevented from performing its obligations under this Agreement to the extent that it is delayed in or prevented from doing so due to any event that is beyond the reasonable control of the parties including but not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, epidemic or pandemic, governmental action or any other event that is beyond the control of the party in question (a “Force Majeure Event”).

16. Termination

16.1 Subject to clause 3.4, either party may terminate this Agreement and/or any Order Form immediately on giving notice in writing to the other party if the other party:

16.1.1 commits a material breach of any term of this Agreement which is irremediable or (if such breach is remediable) fails to remedy that breach within 28 days of receipt of written notice to do so; or

16.1.2 becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986; is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.

16.2 The Service Provider may terminate this Agreement and/or any Order Form immediately on giving written notice to the Customer if the Customer fails to pay any Fees within 14 days of the date they have become due.

16.3 Upon termination of this Agreement and/or the relevant Order Form:

16.3.1 the Customer shall immediately pay any outstanding unpaid invoices and interest and, in respect of Services supplied but not invoiced, the Service Provider may submit an invoice, which shall be payable immediately on receipt;

16.3.2 the Customer shall immediately discontinue use of the Services; and

16.3.3 both parties shall return or destroy all copies of documents and materials obtained, made or authorised to be made by the other party that contain, reflect, incorporate or are based on the Services or any Confidential Information.

16.4 Any termination of this Agreement and/or an Order Form is without prejudice to and shall not affect any accrued rights or liabilities of the parties and nor shall it affect any provision which is expressly or by implication intended to come into or continue in force on or after such termination.

17. Notices

All notices under this Agreement shall be in writing (including email) and shall be delivered by hand or sent by pre-paid first-class post or other next day delivery service 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. A notice delivered shall be deemed to have been received: (a) by hand, when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery); (b) by pre-paid first-class post or other next day delivery service at the time at which it would have been delivered in the normal course of post; and (c) by email, 12 hours after the email has been sent (as recorded on the device from which the sender sent the message), unless the sender receives an automated message that the email has not been delivered.

18. Relationship of Parties

Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Customer.

19. Assignment

Neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, delayed or conditioned, save the case where the party is merged with another organisation.

20. Severance

If one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

21. Entire Agreement

This Agreement embodies and sets forth the entire agreement and understanding between the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement.  Neither party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.

22. Variation 

Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the parties.

23. Waiver

The failure by either party to enforce the performance of any provision in this Agreement shall not constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement and shall in no way affect that party’s right later to enforce or to exercise it. 

24. Third-Party Rights

A person who is not a party to this Agreement has no rights, under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce, or to enjoy the benefit of, any provision of this Agreement.

25. Non-Exclusivity

The relationship between the parties under this Agreement is and shall remain non-exclusive.  Both parties are free to enter into similar relationships with other parties.

26. Governing Law and Jurisdiction

26.1 This Agreement and any dispute or claim arising out of or in connection with it, shall be governed by the laws of England.

26.2 Any dispute between the parties which may arise out of or in connection with this Agreement shall fall within the exclusive jurisdiction of the courts of England.