Terms & Conditions

ZUTEC TERMS AND CONDITIONS

Last updated: 06/09/2022

INTRODUCTION

These terms and conditions (Terms and Conditions) apply to the Customer’s use of the Solution and receipt of the Additional Services.

1. INTERPRETATION

The definitions and rules of interpretation in this Section apply in these Terms and Conditions and, unless expressly provided otherwise, the Order.

DEFINITIONS:

“Additional Services” means any support and maintenance services or professional services to be provided by Zutec as identified and set out in the Order Terms;

“Affiliate” means in respect of a party, its subsidiaries, its holding companies and every subsidiary of each such holding company from time to time (and for this purpose “subsidiary” and “holding company” shall be construed in accordance with section 1159 of the Companies Act 2006) and any other entity agreed in writing by the parties as being an Affiliate in respect of either party;

“Anonymised Data” has the meaning given in Section 4.2;

“Asset” means a building, facility or other construction;

“Asset Data” means any of the Customer Data which relates to an Asset, including any O&M files, health and safety files, fire safety files, as well as other building information, data and documents;

“Asset Owner” means the [person who owns or is in control of the Asset];

“Authorised Users” means those employees and directors of: (i) the Customer; (ii) the Customer’s Affiliates identified in an Order; and (iii) any third party individual contractor or anyone who is not an employee or director of the Customer or a Customer Affiliate included in the Order, who are authorised to use the Solution by the Customer pursuant to the enrolment process set out in Section 2.3;

“Business Day” means any day which is not a Saturday, Sunday or public holiday in London;

“Confidential Information” means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with any copies, which relates to a party (the “Disclosing Party“), to its Group, or to its (or its Group members’) employees, officers, customers or suppliers, and which is directly or indirectly disclosed by or on behalf of the Disclosing Party to another party (the “Receiving Party“) under or in connection with the Order (or which is learnt or acquired by the Receiving Party in connection with an Order), whether before or after the date of the Order, and which would reasonably be regarded as confidential, BUT shall not include (i) information which is in the public domain other than as a result of a breach of the Order or any separate confidentiality undertaking between the parties; (ii) information which the Receiving Party received, free of any obligation of confidence, from a third party which was not itself under any obligation of confidence in relation to that information, whether before the date of its disclosure by the Disclosing Party or otherwise; or (iii) information which the Receiving Party can show by its written or other records was developed or created independently by the Receiving Party or any member of the Receiving Party’s Group;

“Contractor” means a person engaged by the Asset Owner in the construction, development and/or maintenance of an Asset;

“Control” means the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares or interests of an entity;

“Customer” means the customer entity identified as such in the Order;

“Customer Data” means any data transferred to Zutec by the Customer, including any data input into the Solution by the Authorised Users;

“Disclosing Party” means a party disclosing its Confidential Information to the Receiving Party and in the case of the Customer may be the Customer, the Authorised Users and/or the Customer’s Affiliates and in the case of Zutec may be Zutec and/or Zutec’s Affiliates, as applicable;

“Documentation” means any documentation associated with the Solution or Additional Services supplied by Zutec to the Customer;

“Effective Date” means the date(s) specified in the Order Terms, from which Zutec shall provide the Customer with access to the relevant Solution and/or Additional Services;

“Expiry Date(s)” means the date(s) specified in the Order Terms from which Zutec shall cease to provide the Customer with access to the relevant Solution;

“Fair Usage Policy” means Zutec’s fair usage policy set out at www.zutec.com/fair-use-policy/;

“Fees” means the fees payable to Zutec by the Customer for provision of the Solution and the Additional Services, as set out in the Order Terms;

“Group” in relation to each party means that party and its Affiliates;

“Hosting and Security Policies” means Zutec’s published policies, located in the Assurance Centre and as updated from time to time in accordance with an Order, setting out its processes and procedures for maintaining the security, availability and performance of the Solution;

“Initial Term” means the initial term specified in the Order Terms;

“Insolvency Event” means the occurrence of any one or more of the following events in relation to a party:

1. the party becomes unable to pay its debts (within the meaning of section 123(1)(e) or (2) of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent;
2. a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the party;
3. an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the party and/or over all or any part of the assets of the party;
4. the party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or
5. anything equivalent to any of the events or circumstances listed in limbs (a) to (d) (inclusive) occurs in any applicable jurisdiction;

“Intellectual Property Rights” means: (i) patents, rights to inventions, designs, copyright and related rights, database rights, trade marks, related goodwill and the right to sue for passing off] and trade names, in each case whether registered or unregistered; (ii) proprietary rights in domain names; (iii) knowhow, trade secrets and Confidential Information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;

“IPR Claim” means any claim or action against the Customer by any third party that the use of the Solution (or any part of the Solution) by the Customer in accordance with the terms of the Order, infringes the copyright of that third party;

“Order” means and order for the supply of the Solution and/or Additional Services, entered into between Zutec and the Customer;

“Order Terms” means the terms identified as such in the Order;

“Receiving Party” means a party receiving Confidential Information from the Disclosing Party and in the case of Zutec may be Zutec and/or Zutec’s Affiliates, as relevant;

“Related Persons” means Zutec’s Affiliates and Zutec’s and Zutec’s Affiliates’ employees, directors, officers, agents and subcontractors;

“Requirements” means the requirements to be met for the delivery of Additional Services as set out in Section 2;

“Renewal Period” means the renewal period specified in the Order Terms (and, if no such period is specified, a period of twelve (12) months;

“Sales Tax” means any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, fees and surcharges that are legally or by custom borne by a purchaser of goods or services;

“Service Description(s)” means the published specification for each Solution, as updated from time to time in accordance with these Terms and Conditions;

“Service Level Arrangements” means, where applicable, the service level arrangements set out in the Service Description for a Solution;

“Solution” means the software-as-a-service (SaaS) solutions that Zutec provides to the Customer pursuant to the Order, as specified in the Order Terms;

“Software” means the software used by Zutec, Zutec’s Affiliates and/or any sub-contractors in delivering the Solution;

“Term” means the Initial Term and any Renewal Period;

“Usage Rights” means the conditional basis upon which Zutec provides the Solution as set out in each Order, which may include specified permitted uses of the Solution, a specified number of Authorised Users, technical storage or capacity limits relating to use of the Solution and/or geographic constraints on access to the Solution;

“Virus” means 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” means a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability;

“Year” shall mean the period of twelve months commencing on the Effective Date and each and any period of twelve months commencing on an anniversary of the Effective Date subsequent thereto;“Zutec” means the entity identified as “Zutec” in the Order;

1.1

The Section headings are for convenience only and shall not affect the interpretation of these Terms and Conditions or any other part of the Order.

1.2

References to the singular include the plural and vice versa, and references to one gender include the other genders.

1.3

Any reference to persons includes natural persons, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, local authorities, governments, states, foundations and trusts (in each case whether or not having separate legal personality) and any agency of any of the above.

1.4

Any phrase introduced by the terms “including”, “include”, “in particular”, “such as”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.

1.5

Any reference to a statute, statutory provision or subordinate legislation (legislation) (except where the context otherwise requires): (i) shall be deemed to include any by-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation; and (ii) shall be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.

1.6

Any reference to an English legal expression for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal expression.Any reference to “writing” or “written” includes email.

1.7

Any reference to “writing” or “written” includes email.

1.8

Any reference to these Terms and Conditions or to any other agreement or document referred to in these Terms and Conditions is a reference to these Terms and Conditions or such other agreement or document as varied or novated from time to time in accordance with its terms (in each case, other than in breach of the provisions of these Terms and Conditions).

USE OF THE SOLUTION

Use Terms

2.1

In consideration of the payment by the Customer to Zutec of the Fees, Zutec grants to the Customer access to the Solution from the Effective Date.

2.2

In relation to the Solution:

2.2.1	the Customer’s access to the Solution shall be limited to the Usage Rights specified in the Order Terms;
2.2.2	Zutec grants to the Customer, on and subject to the terms of the Order (including these Terms and Conditions) a non-exclusive, non-transferable licence to allow the Authorised Users to access and use the Solution solely for the Customer’s and the relevant Customer Affiliate’s internal business purposes;
2.2.3	Zutec shall provide the Solution in accordance with any Service Level Arrangements (as applicable, if set out in the Order Terms);
2.2.4	the Customer shall not store, distribute or transmit any Virus, or any material, information or data through the Solution that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
2.2.5	the Customer shall not: attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software, the Solution or the Documentation except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; access all or any part of the Solution in order to build a product or service which competes with the Solution; attempt to access or connect to the Solution with automated scripts; attempt to undertake any security testing of the Solution without the prior written consent of Zutec; unless otherwise provided in the Order, use the Solution to provide services to third parties (including the Customer’s Affiliates); subject to Section 19.1, transfer, temporarily or permanently, any of its rights under the Order; or; attempt to obtain, or assist third parties in obtaining, access to the Solution, other than as specifically agreed pursuant to Section 2.3.3;
2.2.6	the Customer acknowledges that components of the Solution may be provided by third party providers and those aspects may be subject to additional usage restrictions. Where this is the case, Zutec shall make the customer aware of such restrictions (and the aspects of the Solution to which they apply) and the Customers shall comply with such restrictions;
2.2.7	the Customer shall use its best endeavours to prevent any unauthorised access to, or use of, the Solution and shall notify Zutec promptly of any such unauthorised access or use; and
2.2.8	no more frequently than once per Year, Zutec may audit the Customer’s compliance with this Section 3.2 by any lawful, technical means and the Customer shall provide all reasonable assistance and information to Zutec necessary to establish that the Solution are only being accessed and used in accordance with the Order.
2.2.9	if the Customer becomes aware of any Vulnerability, it shall immediately notify Zutec accordingly.

2.3

In relation to Authorised Users:

2.3.1	the Customer shall ensure that the Authorised Users comply with the terms of the Order (including these Terms and Conditions), and shall be responsible for any acts and omissions of the Authorised User as if committed by the Customer itself;
2.3.2	the relevant Service Description for each Solution shall specify the enrolment process for Authorised Users for that Solution and the Customer and Zutec shall comply with such processes;
2.3.3	where the Customer wishes to grant access to the Solution to any third-party individual contractor or anyone who is not an employee or director of the Customer (or a Customer Affiliate which is identified in an Order), Zutec’s express prior written consent shall be required and Zutec may: impose reasonable conditions on such consent including, without limitation, requiring the Customer to pay reasonable additional Fees and/or requiring the third-party supplier to enter into a direct agreement with Zutec; and withhold consent at its absolute discretion, including where any third party is a Competitor or an individual contractor is, or is employed by, a Competitor;
2.3.4	the Customer shall maintain a written, up to date list of current Authorised Users and provide such list to Zutec within five (5) Business Days of Zutec’s written request at any time or times;
2.3.5	the Customer shall ensure that each Authorised User keeps any password(s) for their use of the Solution secure and confidential, that such password(s) are changed no less frequently than once every ninety (90) days and that each Authorised User does not share their password(s) to allow any other employees, contractors (individuals or otherwise), representatives and agents of the Customer (or the Customer’s Affiliates) or any other individual or third party to access the Solution;
2.3.6	the Customer will not allow any Authorised User account to be used by more than one (1) individual Authorised User. If the Customer requires an Authorised User’s account to be transferred to another individual, the Customer shall provide Zutec with full details of the new Authorised User (as specified by Zutec) and Zutec shall transfer the Authorised User account to the new individual as soon as reasonably practicable. Following any agreed reassignment of an Authorised User’s account, the previous Authorised User shall have no further right to access the Solution;
2.3.7	in the event that an Authorised User leaves the employment or engagement of the Customer or a Customer Affiliate or where the employment or engagement of an Authorised User is transferred such that the Customer or Customer Affiliate does not intend for them to have access to the Solution, the Customer shall: disable such individual’s passwords and shall not issue any new passwords to such individual; or where, as specified in the relevant Service Description, Zutec controls the enrolment or removal of Authorised Users for a Solution, immediately inform Zutec so that Zutec may disable such individual’s passwords (which Zutec shall do within a reasonable period of time); and
2.3.8	Zutec may audit the Solution regarding the name and password for each Authorised User and, if such audit reveals that passwords have been provided to individuals who are not Authorised Users, Zutec may, without prejudice to Zutec’s other rights:(a) disable such passwords (or require the Customer promptly to disable such passwords) and the Customer shall not issue any new passwords to such individuals; and/or (b) charge the Customer the relevant fees for such additional Authorised Users, as set out in the applicable Order.

2.4

Where the Usage Rights limit the number of Authorsised Users the Customer may appoint, if the Customer wishes to purchase the right to increase the number of Authorised Users, the Customer shall notify Zutec in writing. Zutec shall evaluate such request for additional Authorised Users and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld).

2.5

If Zutec approves the Customer’s request to purchase access for additional Authorised Users under Section 3.4, the Customer shall, within thirty (30) calendar days of the date of Zutec’s invoice, pay to Zutec the relevant fees for such additional Authorised Users, as set out in the applicable Order.

2.6

Zutec may amend these Terms and Conditions (as they apply to any Order), the Solution, the Service Descriptions from time-to-time provided such changes apply to the majority of customers for the Solution and do not materially and negatively impact the functionality, performance or security of the Solution. Zutec shall inform the Customer of such changes in accordance with the process set out in the relevant Service Description, as applicable.

2.7

Zutec shall use reasonable endeavours to meet any performance dates set out in an Order or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence.

2.8

If the Customer does not notify Zutec otherwise in writing within a period of five days (or such other period as set out in the Order Terms) from the first Authorised User being given access to a Solution, or if the Solution is found to conform with its Service Description, the Solution shall be deemed accepted.

2.9

The Customer acknowledges that Zutec may sub-contract any of its obligations under the Order to a third party (including any Affiliate of Zutec) and Zutec accepts liability for the acts and omissions of any sub-contractors as if they were acts or omissions of Zutec itself.

ADDITIONAL SERVICES

3.1

From time to time, Zutec may provide Additional Services as part of an implementation plan or upon Customer’s request (provided that the provision of such Additional Services is agreed in writing in an Order). The description and the rates for these services shall be described in the applicable Order. No work will be performed without a fully executed Order. Unless otherwise stated in the Order, these services are performed based on an hourly rate.

3.2

If the Customer requests an on-site visit, the Customer will reimburse Zutec for reasonable, pre-approved, and documented expenses related to travel and lodging.

CUSTOMER DATA

4.1

As between the parties, the Customer shall own all rights, title and interest in and to all of the Customer Data and shall at all times have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and for ensuring that its use does not infringe the rights of any third parties (including Intellectual Property Rights).

4.2

The Customer hereby grants to Zutec on and subject to the terms of the Order (including these Terms and Conditions) a non-exclusive, non-transferable licence to use the Customer Data for the purpose of providing the Solution and for any requirements ancillary to the provision of the Solution (including any data analytics and service modelling specified in the relevant Service Description). In addition, Zutec may use the Customer Data (other than any Personal Data within the Customer Data) provided that such data is anonymized and aggregated with the equivalent data from Zutec’s other customers such that any Customer Data will not be separately identifiable (the “Anonymised Data“). Zutec may then use such Anonymised Data to provide new products or services to its customers, or to enhance the functionality of the Solution. The Customer acknowledges and agrees that: (i) Anonymised Data is the Confidential Information of Zutec and Zutec owns all Intellectual Property Rights in the Anonymised Data; (ii) Zutec shall be entitled to use the Anonymised Data as part of the in the manner contemplated by this Section 4.2; and (iii) that the rights under this Section 4.2 are irrevocable.

4.3

Notwithstanding anything else in the Order (including these Terms and Conditions), the Customer acknowledges and agrees if the Customer is a Contractor of an Asset Owner, if Zutec is requested to do so by an Asset Owner, Zutec may transfer the Asset Data to the Asset Owner for the Asset Owner to access and use for any purpose (or host the Asset Data for the Asset Owner to access and use).

4.4

Subject to the provisions of Section 5:

4.4.1	Zutec shall follow its procedures for handling Customer Data in accordance with the Service Description for each Solution;
4.4.2	the Customer acknowledges that Authorised Users who access the Solution may have access to Customer Data (and the Customer consents to Zutec providing them with such access through the Solution) and the Customer is responsible for any use or disclosure of Customer Data by such Authorised Users;
4.4.3	in the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Zutec to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data where such back-ups are made by Zutec; and
4.4.4	Zutec shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by the Customer, its Authorised Users, the Customer’s Affiliates or any third party (except those third parties sub-contracted by Zutec to perform services related to Customer Data hosting and back-up, in which case Zutec’s liability shall be subject to the limitations and exclusions set out in the Order, including those set out in this Section 4.4 and in Section 12).

DATA PROTECTION

5.1

In this Section:

5.1.1	Controller, Processor, Personal Data, processing have the meanings defined in the Data Protection Legislation; and
5.1.2	Data Protection Legislation means the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.

5.2

The Order places obligations on Zutec in relation to Data Protection Legislation where it acts as a Processor of the Customer’s Personal Data. In this regard, the Parties agree to comply with the provisions of this Section 5 in respect of all Personal Data processed by Zutec under the Order.

5.3

With respect to the Parties’ obligations under the Order and Data Protection Legislation, the Parties shall give each other such assistance as is reasonable to enable each other to comply with such obligations and both Parties acknowledge that the Customer shall be the Controller and Zutec shall be the Processor.

5.4

As required by Article 28(3) of GDPR, the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects shall be as set out in the Annex to the Terms and Conditions.

5.5

Where the Processor is required to process Personal Data under the Order, it shall:

5.5.1	process the Personal Data only on documented instructions from the Controller, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by law to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
5.5.2	take all reasonable steps to ensure the reliability of its personnel who have access to the Personal Data, and ensure that any of its personnel who have access to the Personal Data have entered into appropriate contractually-binding confidentiality agreements;
5.5.3	have in place appropriate technical and organisational security measures to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. The Controller confirms that it has reviewed these measures and confirms that same are appropriate;
5.5.4	not engage a sub-Processor to process the Personal Data without the prior written consent of the Customer and shall ensure that any sub-Processor engaged is bound by requirements equivalent to those set out herein;
5.5.5	taking into account the nature of the processing, assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests from data subjects exercising their rights under Chapter III of GDPR. The Processor may charge the Controller its reasonable costs for its time spent and expenses incurred in providing the Controller with co-operation and assistance as may be required;
5.5.6	notify the Controller without undue delay if it receives a request from a data subject and/or any other competent authority under Data Protection Legislation. For the sake of clarity, the Processor will not itself respond to any such data subject request;
5.5.7	notify the Controller without undue delay upon becoming aware of or reasonably suspecting a Personal Data breach. The Processor will provide the Controller with sufficient information to allow the Controller to meet any obligations to report a Personal Data breach under Data Protection Legislation;
5.5.8	taking into account the nature of the processing and the information available to it, assist the Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR. The Processor may charge the Controller its reasonable costs for its time spent and expenses incurred in providing the Controller with co-operation and assistance as may be required;
5.5.9	make available to the Controller, upon request, all information necessary to demonstrate compliance with Data Protection Legislation and allow for, and contribute to audits, including inspections by the Controller or another auditor mandated by the Controller of any premises where the processing of Personal Data takes place. The Controller shall give the Processor reasonable notice of any audit and will be fully liable for any associated costs;
5.5.10	at the choice of the Controller, delete or return the Personal Data to the Controller once the Services relating to the processing have completed and shall delete existing copies of Personal Data save where required otherwise by law.

5.6

The Controller warrants, represents and undertakes to the Processor that it has lawful grounds for processing the Personal Data and shall indemnify and keep indemnified the Processor against any liability, fines, claims, demands, expenses and costs (including legal fees) arising as a result of any breach of Data Protection Legislation by the Controller or the Processor acting in accordance with any instruction, policy or procedure of the Controller.

5.7

Notwithstanding anything to the contrary in the Agreement if any of the following occur:

5.7.1	any changes/modifications to Data Protection Legislation (including the requirement to amend, update, modify or replace any systems the Processor uses to process the Personal Data;
5.7.2	any new, clarified or amended guidance or polices issued by a supervisory authority;
5.7.3	any direction or instruction issued by a supervisory authority (whether relating to the Controller or the Processor) in respect of the Services;
5.7.4	any additional services are required outside of the scope of the Services in order to enable the Controller to comply with its obligations under Data Protection Legislation;

then any increased effort or costs incurred by the Processor in association with the aforementioned shall be additionally chargeable to the Controller and shall be agreed in writing and signed by both Parties and in default of Agreement. For the sake of clarity, the Processor shall not be obliged to provide any additional services unless and until an amendment to the Order has been agreed and executed by both Parties.

ZUTEC’S OBLIGATIONS

6.1

Zutec will provide the Solution in accordance with the Service Level Arrangements on request, but makes no representation, and gives no warranty or undertaking, that the operation or availability of the Solution will be uninterrupted or error-free.

6.2

The warranty at Section 6.1 shall not apply to the extent of any non-conformance which is caused by the Customer’s breach of the Order, use of the Solution contrary to Zutec’s instructions or modification or alteration of the Solution by any party other than Zutec or the Related Persons.

6.3

The Customer acknowledges that Zutec and/or the Related Persons may from time to time carry out routine and emergency maintenance of the Solution. The Customer may be unable to access the Solution during any period in which routine or emergency maintenance is being carried out.

6.4

Without limitation to Section 14, the Customer acknowledges that Zutec has no direct control over the availability of bandwidth over the entirety of the internet and that, while Zutec will use such endeavours as Zutec deems appropriate to facilitate the Solution, Zutec shall not be responsible for delays caused by such unavailability.

6.5

If Zutec fails to comply with the warranty set out in Section 6.1, it shall use its reasonable endeavours to rectify such failure as soon as reasonably practicable in accordance with the Service Level Arrangements. Zutec’s obligations under this Section 6.5 shall be the Customer’s sole and exclusive remedy in respect of a breach of the warranty set out in Section 6.1.

6.6

Except as expressly provided in Section 1, the Solution is provided “as is” and to the extent permitted by law, Zutec disclaims all other conditions, warranties or other terms which might have effect between the parties with respect to the Solution, or be implied or incorporated into the Order, whether by statute, common law or otherwise, including any implied conditions, warranties, or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Zutec does not warrant anything in relation to systems that do not make up the Solution or the connection to those systems.

6.7

Zutec does not warrant, represent, undertake or agree that: (a) the use of the Solution by the Customer or its Authorised Users will meet the Customer’s requirements nor that any recommendations derived from use of the Solution will deliver any particular benefits if implemented; (b) defects in the Solution will be corrected; or (c) the functions of the Solution will operate in the combinations which the Customer selects for use.

6.8

Zutec shall provide the Additional Services with appropriately experienced, qualified and trained professional personnel with reasonable skill and care.

6.9

The terms of the Order shall not prevent Zutec from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under the Order.

CUSTOMER OBLIGATIONS

7.1

The Customer shall:

7.1.1	provide Zutec with all necessary: (a) co-operation in relation to the Order; and (b) access to such information, including Customer Data, as may be required by Zutec, in order to deliver the Solution and any Additional Services;
7.1.2	ensure that the Authorised Users comply with any acceptable use policies specified in the Service Description for a Solution or included within a Solution;
7.1.3	promptly inform Zutec of any tax or other legal requirements in any jurisdiction that might prevent the Customer from paying any sum due under the Order (and where such a restriction exists, then the Customer shall be required to take all reasonable steps to ensure that Zutec receives the same net amounts by the due date for payment as if the restriction did not exist);
7.1.4	maintain sufficient licences to any software (from third parties or licensed by Zutec separately to the Order) operated by the Customer using or in conjunction with the Solution;
7.1.5	maintain adequate internet connections, software and other technical solutions to access and use the Solution, as notified by Zutec from time to time;
7.1.6	provide such personnel assistance as may be reasonably requested by Zutec from time to time;
7.1.7	comply with all applicable laws and regulations with respect to its activities under the Order;
7.1.8	carry out all other Customer responsibilities set out in the Order 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, Zutec may adjust any timetable or delivery schedule as reasonably necessary and the Customer shall reimburse Zutec’s, Zutec’s Affiliates’ and their respective sub-contractors’ additional costs resulting from the delay;
7.1.9	before the Customer uses any updates to any third-party software in a live environment, carry out testing updates to any third party software to its satisfaction, to ensure that such updates meet the Customer’s own requirements without causing any issues with the Customer’s use of the Solution; and
7.1.10	take appropriate back-ups of its Customer Data and to secure media with such regularity and in such a manner so as to ensure that it can restore in the event of data loss or corruption from any cause.

FEES AND PAYMENT

8.1

The Customer shall pay the Fees set out in the Order Terms for the provision of the Solution.

8.2

Zutec shall submit invoices to the Customer for the Fees at the times and in accordance with the procedure specified in the Order Terms.

8.3

Not less than forty-five (45) days prior to the commencement of any Renewal Period, Zutec may notify the Customer of the Fees which will be payable by the Customer for that Renewal Period.

8.4

In addition to Section 8.3, Zutec may, at any point in time (but not more frequently than once in any calendar year), increase the Fees (including any rate cards set out in an Order) by the greater of: (i) the percentage increase in the Consumer Price Index since the previous increase of the Fees made under the Order (or where there has been no prior increase, since the Effective Date); and (ii) five per cent (5%).

8.5

The Customer shall pay each invoice submitted by Zutec in cleared funds (in the currency specified in the Order Terms) into the bank account nominated by Zutec from time to time within 30 days of the date of the invoice.

8.6

All sums due to Zutec under or in relation to the Order are exclusive of any Sales Tax which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the Customer in full at the same time as payment is due under the relevant invoice.

8.7

If the Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to Zutec pursuant to the Order and Zutec is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to Zutec will be increased by the amount necessary to yield to Zutec an amount equal to the sum it would have received had no withholdings or deductions been made.

8.8

If the Customer fails to make payment in accordance with this Section 8, then Zutec shall be entitled to:

8.8.1	charge interest on the overdue amount at the lesser of the maximum rate allowed by law or a rate of 5% per annum above the base rate of the Bank of England from time to time in force, accruing on a daily basis from the date on which such amount fell due until payment, whether before or after judgment; and/or
8.8.2	suspend the Customer’s and the Authorised Users’ access to the relevant Solution until payment is made by the Customer in accordance with this Section 8.

8.9

Except where expressly stated otherwise in the Order, any Fees paid in accordance with this Section 8 shall be non-refundable in any circumstances including upon early termination of the Order.

8.10

The Customer shall provide accurate, current and complete information on the Customer’s billing address and billing contacts, including email address and phone number, and will promptly notify Zutec if this information changes.

PROPRIETARY RIGHTS

9.1

The Customer acknowledges and agrees that Zutec and/or its licensors (including Zutec’s Affiliates) own all Intellectual Property Rights in the Solution (including any new Intellectual Property Rights which may be created in connection with the provision of the Solution under the Order). Except as expressly stated herein, nothing under the Order grants the Customer any rights to, or in, any Intellectual Property Rights in respect of the Solution, the Software or any related Documentation.

9.2

Zutec, its Affiliates and their licensors shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use or incorporate into the Solution any enhancement requests provided by the Customer and any Authorised Users so long as the Customer is not identified in any way as the source of such feedback.

10.

CONFIDENTIALITY

10.1

Each party shall:

10.1.1	only use (including making copies of) Confidential Information in connection with and to the extent necessary for the purposes of the Order;
10.1.2	not disclose the Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with Sections 10.2 and 10.3; and;

10.2

The Customer may disclose Confidential Information to its Authorised Users, provided that the Customer informs all Authorised Users that the Confidential Information is confidential.

10.3

The Receiving Party may disclose any Confidential Information to any regulator, law enforcement agency or other third party if it is required to do so by law, regulation, or similar authority. In those circumstances the Receiving Party shall (to the extent practical and lawful to do so) notify the Disclosing Party in writing as soon as practicable before the disclosure and use all reasonable endeavours to consult with the Disclosing Party with a view to agreeing the timing, manner and extent of the disclosure.

10.4

All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in the Order shall (except as expressly agreed otherwise in the Order) operate to transfer, or operate as a grant of any licences or right to use, to any Intellectual Property Rights in the Confidential Information.

10.5

The parties’ obligations under this Section 8 shall continue in force notwithstanding the termination or expiry of the Order.

10.6

Each party acknowledges that damages alone would not be an adequate remedy in the event of breach by the other party of the provisions of this Section 10. Accordingly, it is agreed that either party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this Section 8 by the other party, without prejudice to any other rights and remedies which that first party may have.

11.

INDEMNITIES

11.1

The Customer shall defend, indemnify and hold harmless Zutec and the Related Persons against any and 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 the Customer’s or the Authorised Users’ use of the Solution.

11.2

The Customer shall promptly notify Zutec of any IPR Claim made or threatened against the Customer.

11.3

Subject to the provisions of Section 11.2, this Section 11.3 and Sections 11.4 to 11.6 Zutec shall indemnify and hold harmless the Customer against any and 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 an IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced provided that:

11.3.1	the Customer shall not admit any liability or agree to any settlement or compromise of an IPR Claim without the prior written consent of Zutec;
11.3.2	Zutec shall be entitled at any time from notification in accordance with Section 11.2 to assume exclusive conduct of the IPR Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the IPR Claim and to conduct all discussions and dispute resolution efforts in connection with the IPR Claim);
11.3.3	the Customer shall, at Zutec’s request, cost and expense, give Zutec all reasonable assistance in connection with the conduct of the IPR Claim;
11.3.4	the Customer gives Zutec prompt notice of any IPR Claim or threatened IPR Claim in accordance with Section 11.2; and
11.3.5	the Customer takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in this Section 11.3.

11.4

If any IPR Claim is made, or in Zutec’s reasonable opinion is likely to be made, against the Customer, Zutec may at its option and expense:

11.4.1	obtain for the Customer the right to continue using the Solution in the manner permitted under the Order; or
11.4.2	modify or replace the infringing part of the Solution so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Solution; or
11.4.3	terminate the Order and refund Fees paid in advance by the Customer in respect of any period following such termination.

11.5

Under no circumstances shall Zutec or any Related Persons be liable to the Customer under Section 12.3 or 12.4 (or otherwise) to the extent that the infringement (whether actual or threatened) is based on: (a) any changes, modifications, updates or enhancements made to the Solution other than by Zutec or the Related Persons; (b) any use of the Solution by the Customer or its Authorised Users in a manner contrary to Zutec’s instructions and/or in breach of the Order (including these Terms and Conditions); or (c) the Customer’s or its Authorised Users’ use of the Solution after notice or becoming aware of the actual or threatened IPR Claim.

11.6

The provisions of Sections 11.2 to 11.5 inclusive state the entire liability of Zutec to the Customer in connection with an IPR Claim and shall be the Customer’s sole and exclusive remedy in that regard.

11.7

Zutec’s liability in relation to an IPR Claim is subject to the limitation set out in Section 12.7.

12.

LIMITATION OF LIABILITY

12.1

Nothing in the Order, shall operate so as to exclude or limit the liability of either party to the other for:

12.1.1	death or personal injury arising out of negligence;
12.1.2	fraud or fraudulent misrepresentation by it or its employees; or
12.1.3	any other liability that cannot be excluded or limited by law.

12.2

Subject to Sections 4.4 6.5, 6.6,11, 12.1 and 14, this Section 12 sets out the entire liability of Zutec and the Related Persons to the Customer:

12.2.1	arising under or in connection with the Order (whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise); and
12.2.2	in respect of any use made by the Customer and/or its Authorised Users of the Solution or any part of them.

12.3

Subject to Section 12.1 and 12.2, neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether tortious or statutory), restitution or otherwise for:

12.3.1

any loss of profits, loss of business, loss of savings, depletion of goodwill and/or similar losses, or pure economic loss (regardless of whether these types of loss or damage are direct, indirect, special or consequential), or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in connection with the Order and even if Zutec and/or the Related Persons were aware of the possibility that such loss or damage might be incurred; or

12.3.2

subject to Section 4.4, any loss or corruption of data or information.

12.4

Subject to Section 12.1 and 12.2, the total aggregate liability taken of each party (including liability for breach) in contract (including under any indemnities), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising under or in connection with the Order in respect of any and all causes of action arising in each Year shall in no event exceed the value of the Fees paid or payable by the Customer to Zutec under the Order in that Year (or, if no Fees have been paid or are payable by the Customer to Zutec in a Year, the value of the Fees paid by the Customer to Zutec in the last Year in which Fees were paid by the Customer). The limitation of the Customer’s liability under this section 12.7 does not apply to the payment of any Fees by the Customer.

12.5

For the purposes of calculating liability pursuant to Section 12.4, where a cause of action arises in a Year and continues across subsequent Years and/or continues after the termination of these Order, then the cause of action shall be deemed to have arisen only in the Year in which such cause of action first arose.

13.

TERM, TERMINATION AND SUSPENSION

13.1

The Order shall commence on the Effective Date and, unless terminated earlier in accordance with its terms, shall continue in force for the duration of the Initial Term.

13.2

The Order shall automatically extend for a Renewal Period unless either party gives at least [thirty (30)] days’ written notice to the other before the expiry of the Initial Term or then current Renewal Period (as applicable), in which case the Order shall terminate at 23:59PM (GMT) on the last day of the Initial Term or then current Renewal Period (as applicable).

13.3

Without affecting any other right or remedy available to it, either party may terminate an Order with immediate effect by giving written notice to the other party if:

13.3.1	the other party fails to pay any amount due under the Order on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
13.3.2	the other party commits a material breach of any term of the Order which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of forty-five (45) days after being notified in writing to do so; or
13.3.3	the other party suffers an Insolvency Event.

13.4

Zutec may terminate an Order with immediate effect by giving written notice to the Customer in the event there is a change of Control of the Customer.

13.5

On termination of the Order for any reason:

13.5.1	the Customer and the Authorised Users shall immediately cease all use of the Solution. For the avoidance of doubt, all licences granted under the Order shall immediately terminate except that any licences granted under the Order which are stated to be granted on a perpetual and irrevocable basis shall survive the termination of the Order for any reason and shall continue in full force and effect;
13.5.2	subject to Section 13.5.5, Zutec may immediately take steps to end the Customer’s and the Authorised Users’ access to and use of the Solution;
13.5.3	Zutec shall be entitled to invoice the Customer for all sums due to Zutec under the Order;
13.5.4	subject to any express rights to retain such equipment, property, materials and other items (and all copies of them), each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party (except Zutec and Zutec’s Affiliates may retain reasonable professional records of the Customer’s use of the Solution);
13.5.5	Zutec may destroy or otherwise dispose of any of the Customer Data in its possession at any point thirty (30) days or more after termination of the Order;
13.5.6	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 Order which existed at or before the date of termination shall not be affected or prejudiced; and
13.5.7	Sections 1, 8, 9, 10, 12, this Section 13, and other provisions which are necessary for the interpretation or enforcement of the Order shall continue in force.

13.6

Zutec may suspend the Customer’s right to access the Solution or use any portion or all of the Solution immediately upon notice to the Customer if it determines:

13.6.1	that the Customer’s (or an Authorised User’s) use of or access to the Solution: (i) pose a security risk to Zutec, the Solution or any third party; or (ii) may adversely impact availability or performance of the Solution, the Software or the systems or software of any other customer of Zutec; or (iii) may subject Zutec or any third party to any liability; or (iv) may be fraudulent; or
13.6.2	that the Customer, or any Authorised User, is in breach of the Order or any other agreement by which software being used on or in conjunction with the Solution is licensed.

13.7

Zutec shall reinstate the suspended Solution once it has established the cause of the suspension has been remedied or ceased to exist. Where the cause of the suspension persists for more than thirty (30) days, Zutec may immediately terminate the Order.

13.8

Zutec shall have no liability whether under the terms of the Order or at law to the Customer for any exercise of its rights pursuant to Sections 13.7 or 13.8.

14.

PUBLICITY

14.1

Zutec may refer to the Customer in its marketing materials including any use in any client list, prospectus for investors, press release, advertisement, or any other marketing or promotional material.

15.

FORCE MAJEURE

15.1

Zutec shall not be in breach of the Order nor liable for delay in performing, or failure to perform, any of its obligations under the Order if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Zutec or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, pandemic or epidemic, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances Zutec shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, either party may terminate the Order by giving thirty (30) days’ written notice to the other party.

NO WAIVER

16.1

The failure to exercise, or delay in exercising, a right, power or remedy under the Order or by law shall not constitute a waiver of that right, power or remedy. If a party waives a right, power or remedy arising as a result of a breach of any provision of the Order, this shall not operate as a waiver of any right, power or remedy arising as a result of any subsequent breach of that provision or any other provision of the Order, which will instead require a variation to the Order in accordance with Section 22.

REMEDIES CULMULATIVE

17.1

The rights, powers and remedies provided in the Order are (except as expressly provided) cumulative, and not exclusive of, any rights, powers and remedies provided by law or otherwise.

SEVERABILITY

18.1

If any provision, or part of a provision, of the Order is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of these Terms and Conditions, and the legality, validity or enforceability of the remainder of the provisions of these Terms and Conditions shall not be affected, unless otherwise required by operation of applicable law.

18.2

The parties shall use [all] reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Order which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question and with no fundamental change to the bargain between the parties.

ENTIRE AGREEMENT

19.1

An Order (including these Terms and Conditions) constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to that subject matter.

19.2

Each party acknowledges that in entering into an Order it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings, misrepresentations or representations that were made by or on behalf of the other party in relation to the subject matter of the Order at any time before its signature (together, “Pre-Contractual Statements“), other than those that are set out expressly in the Order.

19.3

Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for Section 19.2.

19.4

Nothing in this Section 19 will exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.

20.

ASSIGNMENT

20.1

Neither Party may assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with the Order, or with any of its rights or obligations under it, without the prior written consent of the other Party, except that Zutec shall be entitled to assign or transfer an Order to: (i) any of its Affiliates; or (ii) to any third party in connection with any restructuring, reorganisation or merger or acquisition, without requiring the Customer’s prior consent.

21.

NO PARTNERSHIP OR AGENCY

21.1

Nothing in the Order is intended to, or shall be deemed to, establish or constitute any partnership or joint venture between the parties, create a relationship of principal and agent for any purpose between the parties, or authorise either party to make or enter into any commitments for or on behalf of the other party.

22.

VARIATIONS

22.1

Subject to Sections 2.6, 8.3 and 8.4, no variation of the Order shall be effective unless made in writing (which excludes email) and signed by or on behalf of each of the parties or by their duly authorised representatives. If the Customer wishes Zutec to proceed with any proposed variation, Zutec has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Fees and any other relevant terms of the Order to take account of the change.

23.

THIRD PARTY RIGHTS

23.1

A person who is not a party to the Order may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.

24.

NOTICES

24.1

Any notice, consent, permission or other communication required to be given under the Order shall be in writing in English and shall be delivered by hand or sent by pre-paid first-class or recorded delivery post to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes.

24.2

A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

GOVERNING LAW AND JURISDICTION

25.1

The Order, and any dispute or claim arising out of or in connection with them or their 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.

25.2

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

Annex – Details of Processing of Controller Personal Data

This Annex specifies certain details of the processing of the Controller Personal Data.

Subject matter and duration of the processing of Controller Personal Data:Provision of the services and related technical support for the term of the Order.
The nature and purpose of the processing of Controller Personal Data: Personal Data may be processed for the purposes of providing the Solution and related technical support. Such processing activities may include collection, storage, alteration, retrieval, consulting and/or erasure.
The types of Controller Personal Data to be processed: Username, Name, email address and phone number of the Authorised Users. The Customer, acting as the Controller, shall notify Zutec, acting as the Processor, in the event the processing involves other types of Personal Data which are not listed above.
The categories of Data Subject to whom the Controller Personal Data relates: Authorised Users of the Solution described in the Order and the personal data of subjects entered into the Solution by the Authorised Users directly or under instruction.

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Terms & Conditions

ZUTEC TERMS AND CONDITIONS