Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation.Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.Client Data: the data inputted by the Client, Authorised Users, or Client Engager on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.Documentation: the documents and policies made available to the Client by Client Engager online via https://engager.app or such other web address notified by Client Engager to the Client from time to time which sets out a description of the Services and the user instructions for the Services.Effective Date: the date when the first subscription is received by Client Engager.Employees: means full or part time employees of the Client but excludes independent contractors or agents.Initial Subscription Term: the period of 1 (one) month commencing on and including the Effective Date.Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.Renewal Period: the period described in clause 15.1.Services: the subscription services provided by Client Engager to the Client under this agreement via https://engager.app or any other website notified to the Client by Client Engager from time to time, as more particularly described in the Documentation.Software: the online software applications provided by Client Engager as part of the Services.Subscription Fees: the subscription fees payable by the Client to Client Engager for the User Subscriptions, shall be the amount of the monthly payment selected by the Client in the “Subscription” section of Client Engager as amended from time to time at the sole discretion of Client Engager.Subscription Term: has the meaning given in clause 15.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. USER SUBSCRIPTIONS
(b) it shall permit Client Engager to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Client Engager’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;
(c) if any of the audits referred to in clause 2.2(b) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Client Engager’s other rights, the Client shall promptly disable such passwords and Client Engager shall not issue any new passwords to any such individual; and
(d) if any of the audits referred to in clause 2.2(b) reveal that the Client has underpaid Subscription Fees to Client Engager, then without prejudice to Client Engager’s other rights, the Client shall pay to Client Engager an amount equal to such underpayment as calculated within 10 Business Days of the date of the relevant audit.
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and Client Engager reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
3. FREE TRIALS
5. CLIENT DATA
6. THIRD PARTY PROVIDERS
7. CLIENT ENGAGER’S OBLIGATIONS
8. CLIENT’S OBLIGATIONS
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Client Engager;
In order to provide the Services, including but not limited to Client Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Client Engager may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Client Engager, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Client Engager from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Client Engager’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
9. CHARGES AND PAYMENT
(a) Client Engager may, without liability to the Client, permanently disable the Client’s password, account and access to all or part of the Services and Client Engager shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Client Engager’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
(a) shall be payable in pounds sterling;
(b) are, subject to clause 14.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Client Engager’s invoice(s) at the appropriate rate.
10. PROPRIETARY RIGHTS
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
13. CYBER LIABILITY
Client Engager is not liable to the Client or any of their clients for any loss or corruption of any data on the Client Engager system where the loss or corruption is due to the act or omission of the Client or any other party using the Services. Client Engager will use its reasonable commercial endeavours to have systems to protect the data on its systems and to be able to restore such data, but the Client is expected to download and hold its own local copies of all Letters of Engagement it issues and other data put onto the Client Engager system including, but not limited to, alert dates, filing dates, reminder dates, UTR and NI numbers and other client related data. The Client is to take reasonable steps to ensure its own systems are kept clear and free of viruses and other infections that may affect Client Engager and to hold cyber liability insurances in the amount of no less than £2 million.
14. LIMITATION OF LIABILITY
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Client of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
(a) the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. Client Engager shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Client Engager by the Client in connection with the Services and the Documentation, or any actions taken by Client Engager at the Client’s direction;
(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; and
(c) the Services and the Documentation are provided to the Client on an “as is” basis.
(a) for death or personal injury caused by Client Engager’s negligence; or
(b) for fraud or fraudulent misrepresentation.
(a) Client Engager shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) Subject to Clause 13 Client Engager’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 total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
15. TERM AND TERMINATION
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period. The Client may achieve this by simply turning off the auto-renew facility on their account in which case the access will cease at then end of the last month for which payment has been made; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
(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) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
(a) all licences granted under this agreement shall immediately terminate;
(b) 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;
(c) Client Engager may destroy or otherwise dispose of any of the Client Data in its possession unless Client Engager receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Client Engager shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client 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 Client shall pay all reasonable expenses incurred by Client Engager in returning or disposing of Client Data; and
(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.
16. FORCE MAJEURE
19. ENTIRE AGREEMENT
21. 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).
22. THIRD PARTY RIGHTS
24. LICENCE AND CONDITIONS OF USE OF Client Engager LOGO
1. You may display the Logo on your advertising printed and on line material. The Logo may not be included within or as part of your trade or business name, domain name, product or service name, logo, trade dress, design, slogan or other trademarks.
2. Except for size, you may not alter the Logo in any manner, including proportions, colours elements, etc., or animate, morph, or otherwise distort its perspective or two dimensional appearance.
3. Client Engager can provide you with electronic artwork for the Logo.
4. The full colour, positive, horizontal version of the Logo is the only acceptable treatment as shown below. Ordinarily the Logo must not appear more than once on a single sheet or webpage as duplication can dilute the strength and impact.
5. Your trading/company name, trademark or logo must appear in any materials where the Logo is used.
6. The materials and websites on which the Logo is used must comply with relevant legislation including the British Codes of Advertising and sales promotion and must not contain statements or images which are untrue, misleading objectionable, tasteless, obscene, offensive or disparaging of Client Engager.
7. The Logo must stand alone. The Logo must be given a reasonable amount of clear space around the Logo separating it from any other logo, such as type, photography, borders and edges.
8. You agree at your own cost and expense to correct any misuses of the Logo upon notice from Client Engager
9. If permission to use the Logo is withdrawn it shall take effect immediately and the Logo shall be removed from any website and stocks of materials bearing the logo at the Client’s expense.
25 GOVERNING LAW AND JURISDICTION
26 SUBSCRIPTION FEES AND SUBSCRIPTION TERM
Document version 7 – 30/01/2024