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1. INTERPRETATION
1.1 These Customer Subscription Terms and Conditions (T&Cs) together with any attached schedules, the Documentation and any Order Forms, set out the basis upon which Equali will provide the Services to the Customer.
1.2 The definitions and rules of interpretation in this paragraph apply in these Customer T&Cs. Capitalised terms used in these Customer T&Cs shall have the meaning given to them in the Order Form, unless otherwise defined herein.
1.3 Definitions:-
Agreement: means any Order Form, these Customer T&Cs together with any attached schedules and related Documentation.
API: any application programming interface provided by Equali which, once configured, enables the Customer to connect to the Software.
Authorised Users: those employees of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in paragraph 3.2.
Back-Up Policy: the back-up policy made available as part of the Documentation or such other document or website address as may be notified to the Customer from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Customer: shall have the meaning given to such term in the Order Form.
Customer Data Terms: means the terms and conditions contained here.
Data: the data inputted by the Customer, Authorised Users or Equali on their behalf, or data collected via a platform, SFTP or API, or any other transfer method agreed to be Equali and the Customer, for the purpose of using the Services.
Derived Data: any data which has been combined or aggregated (wholly or in part) with other data or information or adapted such that it cannot be identified as originating or deriving directly from the data and cannot be reverse-engineered such that it can be so identified.
Documentation: any document, material or information made available to the Customer by Equali which sets out a description of the Services and the user instructions for the Services, available on our Customer Help Centre, all as may be updated by Equali from time to time.
End Customer: Any customer or user of Equali's platform who has no contractual relationship with Equali but has a direct or indirect relationship with Equali's customer
Equali: Equali Finance Limited, a private limited company registered in England and Wales with company registration number 13828609 and with registered address at 3rd floor, 86-90 Paul Street, London EC2A 4NE.
Initial Subscription Term: means the period commencing on the Order Form Effective Date and continuing for the period specified in the relevant Order Form, typically monthly or annually.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information(including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.
Normal Business Hours: 9.00am to 5.00pm local UK time, each Business Day.
Notices: has the meaning given in paragraph 26.1.
Order Form: an order form comprising of certain fields which are completed by the Customer in the Equali online sign-up processor in writing between both parties, setting out key commercial details, including the selected Subscription Tier and related fees accepted by the Customer, which shall apply in addition to these T&Cs.
Order Form Effective Date: the date set out as the “Order Form Effective Date” in the applicable Order Form or in the absence of an Effective Date, the data on which the Software goes live for the Customer.
Personal Data: has the meaning given to such term in the Customer Data Terms.
Renewal Subscription Term: the period set out in the “Renewal Subscription Term” section in the Order Form.
Service Levels: any service levels for the Services (if any), as set out in the Documentation.
Services: the ledger, reporting and payment reconciliation Software and related services provided by Equali to the Customer under these Customer T&Cs, all as more particularly described in the Documentation.
Set-Up Services: means any additional onboarding and configuration services that are required in order to make the Services and the Software available to the Customer as further detailed in an Order Form or agreed in writing between the parties and subject to the Set-Up Services Terms.
Set-Up Services Terms: means the terms and conditions contained here.
SFTP: secure file transfer protocol.
Software: the online software applications provided by Equali as part of the Services, including any user interface, SFTP or API provided by Equali to access the same.
Special Order Form Terms: the terms set out in the “Special OrderForm Terms” section of the Order Form.
Subscription Fees: the subscription fees payable by the Customer to Equali, as set out in an Order Form and as maybe amended from time to time in accordance with paragraph 8 (Charges and Payment), for the right to use the Services pursuant to these Customer T&Cs.
Subscription Term: the period, comprising the InitialSubscription Term and any Renewal Terms entered into pursuant to paragraph 15.1.
Subscription Tier(s): the different tiers of Software and Services which are offered by Equali and detailed here.
Usage Data: any usage and statistical data relating to the Customer’s use of the Services.
User Accounts: the limited rights purchased by the Customer pursuant to these Customer T&Cs which entitle an Authorised User to access and use the Services and the Documentation in accordance with these Customer T&Cs.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Customer T&Cs.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Customer T&Cs under that statute or statutory provision.
1.10 In the event and only to the extent of any conflict between the terms of this Agreement, the following order of precedence shall apply:
(a) the Special Order Form Terms;
(b) these Customer T&Cs;
(c) the schedules of these Customer T&Cs; and
(d) the terms and conditions set out in anOrder Form (other than the Special Order Form Terms).
1.11 No Order Form will be valid or binding on either party unless and until it has been either (a) completed on the Equali website and confirmed in writing by Equali (email to suffice); or (b) signed/confirmed in writing between duly authorised representatives of both Equali and Customer. Neither party will be obliged to enter into any Order Form.
1.12 Each Order Form shall commence on its Order Form Effective Date and continue for theInitial Subscription Term and at the end of the Initial Subscription Term continue for successive Renewal Subscription Terms subject to earlier termination in accordance with the terms of this Agreement.
1.13 At the point of sign up, the Customer shall select its Subscription Tier and accept the associated pricing.
2. TRIAL PERIOD TERMS
2.1 Equali may, in its sole discretion, grant the Customer a limited, non-exclusive, non-transferable license to access and use the Software and Services on a free or discounted basis for a limited period of days as set out in the Order Form, beginning on the date the Customer first accesses the Software.
2.2 For the duration of such trial period, the Software is provided on an “as-is” basis and without any representations, warranties, or conditions of any kind, whether express, implied or statutory, including warranties of merchantability, fitness for a particular purpose or non-infringement. Equali does not warrant that the Software will meet the Customer’s requirements, operate without interruption or be error-free during the trial period.
2.3 Equali shall have no liability whatsoever during this trial period, including for any direct, indirect, incidental, consequential, special or punitive losses or damages arising from the Customer’s use of the Software.
2.4 The trial shall automatically convert into a paid Subscription unless otherwise agreed between the parties in writing.
3. RIGHT TO USE
3.1 Subject to the Customer paying the applicable Subscription Fees in accordance with paragraph 9, the restrictions set out in this paragraph 3 (Right to Use), paragraph 4 (Restrictions) and the other terms and conditions of these Customer T&Cs, Equali hereby grants to the Customer a non-exclusive, non-transferable right, without the ability to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term, solely for the Customer's internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed regularly and that each Authorised User shall keep his password confidential;
3.2.2 it shall maintain a record of current Authorised Users and provide such list to Equali within 5 Business Days of Equali’s written request.
3.2.3 it shall permit Equali or Equali's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Equali's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
3.2.4 if any of the audits referred to in paragraph 3.2.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Equali's other rights, the Customer shall promptly disable such passwords and Equali shall not issue any new passwords to any such individual.
3.3 The rights provided under this paragraph are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
4. RESTRICTIONS
4.1 During the course of its use of the Services, the Customer shall not access, store, distribute, transmit or submit any Viruses or any material that is, or potentially is, offensive, explicit, illegal, harmful or prejudicial to any person or property. Equali reserves the right, without liability to the Customer or prejudice to its other rights, to delete or disable the Customer's access to any material that breaches the provisions of this paragraph.
4.2 The Customer shall not:
4.2.1 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 these Customer T&Cs:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of theSoftware and/or Documentation (as applicable) in any form or media or by anymeans; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4.2.2 accessor use all or any part of the Software, Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation or the business of Equali; or
4.2.3 use or facilitate the use of the Software,Services and/or Documentation other than as expressly permitted by the terms of these Customer T&Cs.
4.3 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Equali.
4.4 In the event of:
4.4.1 any use of the Services by Customer personnel other than by Authorised Users; or
4.4.2 any use of the Services by Authorised Users that in Equali’s reasonable judgment threatens the security, integrity or availability of the Services (or services provided by Equali to its other customers); or
4.4.3 any use of the Services that breaches the provisions of paragraphs 4.1, 4.2 or 4.3; or
4.4.4 any use of the Software by any third party;
Equali reserves the right, without liability to the Customer or prejudice to its other rights, to suspend its provision of the Services, provided that Equali will use commercially reasonable efforts to notify the Customer and provide the Customer with an opportunity to remedy such violation or threat prior to such suspension.
5. SERVICES
5.1 Equali shall make available the Services and Documentation to the Customer during the Subscription Term and configure the Software to enable the Customer’s access to the Services (subject to the Customer’s compliance with the technical specifications, installation instructions and systems requirements for the Services and Software as set out in the Documentation).
5.2 Equali shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
5.2.1 planned maintenance carried out during the maintenance window of 8.00pm to 3.00am UK time; and
5.2.2 Unscheduled maintenance performed outside Normal Business Hours, provided that Equali has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance, except if such maintenance relates to business critical service availability in which case, Equali shall use reasonable endeavours to give 1 Normal Business Hours’ notice.
5.3 Equali will, as part of the Services and at no additional cost to the Customer, provide the Customer with Equali’s standard customer support services during Normal Business Hours. Equali may amend the standard customer support services it provides in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Equali’s then current rates.
5.4 Where Equali and the Customer agree that Equali shall provide Set-Up Services to the Customer, the provisions set out in the Equali Set-Up Service Terms shall apply to any such Set-UpServices.
6. PERSONAL DATA
6.1 Each Party undertakes to comply with all applicable requirements of the Customer Data Terms and its provisions shall apply to Personal Data collected and processed under this Agreement. The Customer Data Terms can be found here.
7. EQUALI’S RIGHTS AND OBLIGATIONS
7.1 During the Subscription Term, Equali undertakes that the Services will be performed substantially in accordance with the Documentation and the Service Levels set out therein (if applicable) and with reasonable care and skill.
7.2 The undertaking at paragraph 7.1 shall not apply to the extent of any non-conformance which is caused by, and Equali is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
7.2.1 use of the Services contrary to Equali’s instructions, or modification or alteration of the Services by any party other than Equali or Equali’s duly authorised contractors or agents; or
7.2.2 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); or
7.2.3 any period of force majeure as defined in paragraph 17 (Force majeure); or
7.2.4 the Customer’s failure to fulfil its responsibilities as set out in these T&C sand the Documentation; or
7.2.5 any of the other limitations or exclusions set out in the Documentation.
7.3 Notwithstandingthe foregoing, Equali does not warrant that:
7.3.1 the Customer's use of the Services will be uninterrupted or error-free;
7.3.2 that the Services, Documentation and/or the information obtained by the Customer through the Services will meet their requirements; or
7.3.3 the Software or the Services will be free from Vulnerabilities or Viruses.
7.4 The Agreement shall not in any way prevent Equali from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are the same or similar to those provided under the Agreement.
7.5 Subject to sub-paragraph 8.1.6, Equali warrants that it has and will maintain all necessary licences, consents, and permissions that it requires in order to perform its obligations under these Customer T&Cs.
7.6 Equali shall follow its archiving procedures for Data as set out in its Back-Up Policy, as such document may be amended by Equali in its sole discretion from time to time. In the event of any loss or damage to Data, the Customer's sole and exclusive remedy against Equali shall be for Equali to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by Equali in accordance with the archiving procedure described in its Back-Up Policy. Equali shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (except those third parties sub-contracted byEquali to perform services related to Data maintenance and back-up for which it shall remain fully liable).
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 provide Equali with:
(a) all necessary co-operation in relation to the Agreement; and
(b) all necessary access to such information as may be required by Equali;
in order to provide the Services, including but not limited to Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities in connection with the Agreement and the Services;
8.1.3 carry out all other Customer responsibilities set out in the Agreement 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, Equali may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 configure its access to the Services via the relevant platform or the Software, or other transfer mechanism agreed with Equali, in accordance with Equali’s instructions;
8.1.5 ensure that the Authorised Users use the Services and the Documentation in accordance with the Agreement and shall be responsible for any breach of the Agreement caused or contributed to by any acts or omissions on the part of any Authorised User;
8.1.6 obtain and shall maintain all necessarylicences, consents, and permissions that it requires in order for Equali, itagents to perform their obligations and exercise their rightsunder the Agreement, including without limitation the Services;
8.1.7 have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Data;
8.1.8 have sole responsibility for ensuring it has the rights and permission required to share the Data with Equali;
8.1.9 as between the parties, be responsible for responding to all third party requests concerning the use of the Services by the Customer; and
8.1.10 be, to the extent permitted by law and except as otherwise expressly provided in these Customer T&Cs, solely responsible for:-
(a) procuring, maintaining and securing its network connections and telecommunications links from its systems to Equali’s data centres; and
(b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet.
8.1.11 not supply any of its End Customers’ credit card, payment card details or bank details (including sort code and bank account number) to Equali.
9. CHARGES AND PAYMENT
9.1 In consideration of the rights granted in paragraph 3, and the provision of the Services during the Subscription Term, the Customer shall pay the Subscription Fees, in accordance with this paragraph and the relevant Order Form, within 30 days of the date of Equali’s invoice. For the avoidance of doubt, no Fees shall be payable in relation to any free trial period.
9.2 Payment of Subscription Fees may be made by bank transfer into an account pre-agreed by Equali or via Equali’s third party payment provider, Paddle, or such other provider as Equali notifies the Customer from time to time.
9.3 Equali may, in its discretion, increase the Subscription Fees on an annual basis with effect from each anniversary of the Order Form Effective Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the Order Form Effective Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
9.4 Where the Customer exceeds any of the thresholds or parameters set out in a Subscription Tier, the Customer shall be automatically upgraded to a superior Subscription Tier to allow for such additional usage and the Customer shall be charged any increased Subscription Fees accordingly on the next invoice falling due.
9.5 If Equali has not received payment when due under paragraphs 9.1 or 9.4, and without prejudice to any other rights and remedies of Equali:
9.5.1 Equali may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Equali shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.6 All amounts and fees stated or referred to in these Subscription Terms andConditions:
9.6.1 are non-cancellable and non-refundable, except in accordance with paragraphs 13.2.3 or 15.2; and
9.6.2 are exclusive of value added tax or any other equivalent sales tax or similar taxes, which shall be added to Equali’s invoice(s) at the appropriate rate.
9.7 Where Customer’s accounting system requires the issuance of purchase orders (or similar document), Customer shall issue purchase orders in a timely manner in advance of the date of issue of the applicable invoices. Equali may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services, and Equali shall be under no obligation to provide any or all of the Services, if at any time it is not in possession of purchase order cover for the full value of the Subscription Fees; provided always that the Agreement shall constitute a binding agreement notwithstanding the absence of a purchase order from Customer.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Equali and/or its licensors own all Intellectual Property Rights in the Software, Services and the Documentation. Except as expressly stated herein, the Customer acknowledges and agrees nothing in the Documentation or the Agreement grants the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Software, Services or the Documentation.
10.2 The Customer acknowledges and agrees that Equali and/or its licensors shall own allIntellectual Property Rights in any improvements, amendments or additions to the Software, Services and the Documentation, whether such improvements, amendments or additions are a result of comments, information, opinions or suggestions made by the Customer or otherwise.
11. LICENCE OF DATA
11.1 The Customer grants to Equali a non-exclusive, royalty-free perpetual, irrevocable worldwide licence, with no end date, for Equali to (i) access, use and modify the Data for the purpose of providing of the Services, and (ii) access, view, use, store, modify, combine and aggregate the Usage Data, for any purpose and in any way whatsoever, and (iii) use the Usage Data to create Derived Data.
11.2 Equali shall own all Intellectual Property Rights in the Derived Data and the Customer acknowledges that it shall have no rights in relation to the Derived Data.
12. CONFIDENTIALITY
12.1 In this paragraph, “ConfidentialInformation” means any and all non-public information that would be regarded as confidential by a reasonable business person and relating to the business plans, financial information, operations, processes, know-how, designs, trade secrets or services of the Discloser as well as such information with respect to a third party disclosed by or on behalf of one party to the other party in connection with the Agreement and the Services, whether marked confidential or not. Without limitation, the terms of this Agreement and information about Equali’s directors and employees shall constitute Confidential Information.
12.2 Information is not Confidential Information if:
12.2.1 it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or theRecipient’s Representatives in breach of this agreement;
12.2.2 it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
12.2.3 it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information;
12.2.4 it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser; or
12.2.5 it is developed by or for the Recipient independently of the information disclosed by the Discloser.
For the purposes of this paragraph, “Recipient” means a party to this Agreement receiving Confidential Information, directly or indirectly, to the other party; and “Discloser” means a party to this Agreement when it discloses its Confidential Information, directly or indirectly, to the other party.
12.3 Each party undertakes that it shall not at any time use or disclose to any person (and shall use its best endeavours to prevent the use, publication or disclosure of) any Confidential Information except as permitted by paragraph 12.4.
12.4 Each party may disclose the other party'sConfidential Information:
12.4.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this paragraph (“Recipient’sRepresentatives”); and
12.4.2 as maybe required by law, a court of competent jurisdiction or any governmental orregulatory authority.
12.5 Neitherparty shall use any other party's Confidential Informationfor any purpose other than to perform its obligations under the agreement.
12.6 Without limitation, the Customer acknowledges that details of the Services, demonstrations and the results of any performance tests and/or other tests of the Services, constitute Equali’s Confidential Information.
12.7 Equali acknowledges that the Data is the Confidential Information of the Customer.
12.8 The above provisions of this paragraph 12 shall survive termination of these Subscription Terms and Conditions, however arising.
12.9 For the avoidance of doubt, Equali shall be permitted to include the Customer’s name, logo, trademarks, case studies and/or testimonials on its website, its list of clients for the Services provided and on its marketing materials (in both digital and print formats), without the Customer’s prior written consent, for the purpose of promoting Equali’s products and services. The Customer may use Equali’s name in communications or other materials to identify themselves as recipients of the Services or describe the Customer’s use of the Services and what the Services entail.
13. INDEMNITY
13.1 Equali shall defend, indemnify and hold harmless the Customer against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) attributable exclusively to a claim (a “Claim”)that the use of the Software, Services or Documentation (“Indemnified Items”) infringes a third party’s Intellectual Property Rights in the United Kingdom.
13.2 If any Indemnified Item is found to infringe in the United Kingdom a third party’s Intellectual Property Rights, or in the reasonable opinion of Equali is likely to be the subject of a Claim, Equali may, at its option:
13.2.1 obtain for the Customer the right to use the Indemnified Item;
13.2.2 replace or modify the Indemnified Item so that it becomes non-infringing; or
13.2.3 remove the Indemnified Item and refund any prepaid portion of the Subscription Fees paid in advance in respect of any affected Services for the period following such removal.
13.3 Equali shall have no liability or obligation to the extent that any Claim results from:
13.3.1 use of any Indemnified Item in combination with any software, hardware, Intellectual Property Rights, products or other equipment or materials not supplied by or approved in writing by Equali;
13.3.2 Equali’s compliance with designs or specifications of the Customer;
13.3.3 use of an allegedly infringing version of the Indemnified Item, if the infringement could have been avoided by the use of a later version made available to the Customer by Equali;
13.3.4 the Customer's use of an Indemnified Item in a manner contrary to the instructions given to the Customer by Equali;
13.3.5 the Customer's use of an Indemnified Item after notice of the alleged or actual infringement from Equali or the third party; or
13.3.6 modification, repair, adjustment or enhancement of the Indemnified Item other than by or on behalf of Equali or at Equali’s written direction.
13.4 In no circumstances shall Equali be liable for any losses, costs or expenses incurred by the Customer for any indirect, consequential or special loss or damage.
13.5 The provisions of this paragraph 13 state the entire liability and obligation ofEquali and exclusive remedy of the Customer for claims that any IndemnifiedItem infringes a third party’s intellectual property rights.
13.6 The Customer shall defend, indemnify and hold harmless Equali against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:-
13.6.1 the Customer's use of the Services and/or Documentation;
13.6.2 a breach by the Customer of paragraph 8.1 of this Agreement;
13.6.3 a Claim that use of the Data infringes a third party’s Intellectual Property Rights.
13.7 The indemnity obligations in paragraphs 13.1 and 13.6 are conditional upon:
13.7.1 the indemnified party giving written Notice of the Claim promptly to the indemnifying party;
13.7.2 the indemnifying party having sole control of the defence and settlement of the Claim;
13.7.3 the indemnified party not compromising or settling such Claim;
13.7.4 the indemnified party providing to the indemnifying party, at the indemnifying party’s expense, all available information and assistance; and
13.7.5 the indemnified party using all reasonable endeavours to mitigate any losses or damage.
14. LIMITATION OF LIABILITY
14.1 Except as expressly and specifically provided in these Customer T&Cs:
14.1.1 the Customer assumes sole responsibility, and Equali shall have no liability, for results obtained from the use of the Services and the Documentation by the Customer (or by the Customer’s own end-customers) for conclusions drawn by the Customer (or by the Customer’s own end-customers) from such use, and for any actions taken by the Customer (or by the Customer’s own end-customers) in consequence of such results or conclusions;
14.1.2 Equali shall have no liability of any nature for any damage or losses caused by errors, inaccuracies or omissions in the Data or any other information or instructions provided by the Customer (or by the Customer’s own end-customers) in connection with the Services, or any actions taken by Equali at the Customer's direction; and
14.1.3 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.
14.2 Nothing in these Customer T&Cs excludes or limits the liability of either party:
14.2.1 for death or personal injury caused by negligence;
14.2.2 for fraud or fraudulent misrepresentation;
14.2.3 for breach of the obligations implied by section 12 of the Sale of Goods Act 1979, or section 2 of the Supply of Goods and Services Act 1982; or
14.2.4 any other liability which may not be excluded by law.
14.3 Subject to paragraph 14.2 Equali shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
14.3.1 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
14.3.2 any special, indirect or consequential loss, costs, damages, charges or expenses;
in either case, however arising under this Agreement.
14.4 Subject to paragraphs 14.1, 14.2 and 14.3, Equali’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 the Services shall, in respect of any claim, be limited to the total Subscription Fees paid or payable in respect of the Order Form relevant to such claim during the 12 months immediately preceding the date on which the claim arose.
15. TERM AND TERMINATION
15.1 After expiry of the free trial period, the Agreement shall, unless otherwise terminated as provided in this paragraph 15, be deemed to have commenced on the Order Form Effective Date and each Order Form shall continue in force until the end of the Initial Subscription Term applicable to such Order Form. Thereafter the relevant Order Form will automatically renew for successive Renewal Subscription Terms (each a “Renewal Term”) on the same terms and conditions (subject to any change in the Fees in accordance with paragraph 9) unless either party provides the other with its written intention not to renew at least 60 days’ prior to the end of the Initial Subscription Term or the then-current Renewal Term, as applicable.
15.2 Equali may terminate the Agreement or any Order Form for convenience at any time by giving not less than 30 days’ prior written notice to the Customer, and provided that Equali shall refund the Customer any prepaid portion of the applicable Subscription Fees in respect of the remainder of the applicable Subscription Term following the effective date of termination.
15.3 Without affecting any other right or remedy available to it, either party may terminate the Agreement or any Order Form with immediate effect by giving written Notice to the other party if:
15.3.1 the other party fails to pay any amount due in connection with the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
15.3.2 the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
15.3.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
15.3.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
15.3.5 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the agreement has been placed in jeopardy.
15.4 On termination of the Agreement or any Order Form for any reason:
15.4.1 all User Accounts and all rights granted under the Agreement or the relevant Order Form (as applicable) shall immediately terminate and the Customer shall immediately cease all use of the Software, Services and the Documentation in relation to such;
15.4.2 without prejudice to Equali’s other rights and remedies, the Customer shall immediately pay all Subscription Fees incurred prior to the date of termination;
15.4.3 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
15.4.4 Equali shall, at the request of the Customer, destroy or otherwise dispose of any of the Data in its possession, unless Equali receives, no later than 10 days after the effective date of termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Data. Equali shall use commercially reasonable endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination. The Customer shall pay all reasonable expenses incurred by Equali in returning or disposing of the Data. Notwithstanding the foregoing, this provision does not require the deletion of Data by Equali where required by law and as required for internal audit and compliance purposes.
15.4.5 Equali shall, at the request of the Customer and at the Customer’s cost, provide the Customer with exit assistance as agreed in writing between the parties;
15.4.6 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.
16. EXPORT CONTROL
16.1 The Customer acknowledges that the Software may be subject to restrictions and controls imposed by the United Kingdom export control laws and obligations and similar laws in other jurisdictions. Customer agrees to comply, at its own expense, with all applicable export and re-export control laws and regulations.
17. FORCE MAJEURE
17.1 Neither party shall have any liability to the other party if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party the subject of the force majeure event, or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, pandemic, epidemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.
18. CONFLICT
18.1 If there is any conflict, ambiguity or inconsistency between any of the provisions of the Agreement, the order of priority shall be governed as set out in the Engagement Letter.
19. WAIVER
19.1 No failure or delay by a party to exercise any right or remedy provided under these Customer T&Cs or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
20.1 Except as expressly provided in these Customer T&Cs, the rights and remedies provided under these Customer T&Cs are in addition to, and not exclusive of, any rights or remedies provided by law.
21. SEVERANCE
21.1 If any provision or part-provision of theAgreement is or becomes invalid, illegal or unenforceable, it shall be deemeddeleted, but that shall not affect the validity and enforceability of the restof the Agreement, and the parties shall negotiate in goodfaith to agree a replacement provision that, to the greatest extent possible,achieves the intended commercial result of the original provision.
22. ENTIRE AGREEMENT
22.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into the Agreement it has not relied on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
22.3 Neither Equali or the Customer shall have a claim for innocent or negligent misrepresentation based on any statement in theAgreement.
23. ASSIGNMENT
23.1 The Customer shall not, without the prior written consent of Equali, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
23.2 Equali may at any time (i) without the prior written consent of the Customer, engage subcontractors in the provision of the Services and (ii) by Notice to the Customer (and without any requirement to seek consent of the Customer) assign all or any of its rights under theAgreement to a third party.
24. VARIATION
24.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
25. NO PARTNERSHIP OR AGENCY
25.1 Nothing in the 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).
26. THIRD PARTY RIGHTS
26.1 The Engagement Letter does not confer any rights on any person or party (other than the parties to these Customer T&Cs and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
27. NOTICES
27.1 Any notice required to be given under these Customer T&Cs, including without limitation, notices of early termination, breach and the like, (“Notices”)shall be in writing and in English and, where sent (i) in physical form, shall be sent by commercial courier, or a Royal Mail service that provides for evidence of time and date of delivery, to the other party at its address set out in the Engagement Letter, or such other address as may have been notified by that party for such purposes; and (ii) by email to the representative email address notified by that party in the relevant Order Form and shall be deemed received when sent, provided no bounce back or notification of failed delivery has been received by the sender.
28. COUNTERPARTS
28.1 This Agreement and any Order Form 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.
28.2 Transmission of the executed signature page of a counterpart of this agreement by email (in PDF, JPEG or other agreed format) or via DocuSign shall take effect as the transmission of an executed"wet-ink" counterpart of this Agreement.
29. GOVERNING LAW
29.1 The 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 construed in accordance with the law of England and Wales.
30. JURISDICTION
30.1 The Customer and Equali irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
