IQBlade Platform Terms And Conditions
IQBlade (as defined below) has developed a software platform which it makes available to subscribers via the internet for the purpose of presenting and analysing data on company profile and performance. These are the standard terms and conditions (“Conditions”) on which IQBlade accepts requests to use its Trial Service (as defined below), orders for subscriptions and charges for Services (as defined below) from its website http://www.iqblade.com from any person, corporation or other entity (referred to as a “Customer” or “you”) on the terms named in the Particulars (as defined below). Together, the Conditions (along with any documents referred to in them) and the Particulars comprise the agreement between IQBlade and the Customer.
In these Conditions, the following definitions shall apply:
“Archiving Procedure” means the back-up procedure that IQBlade follows from time to time;
“Authorised User” means an employee, agent or independent contractor of the Customer who is authorised by the Customer to use the Services;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Confidential Information” means information about a party or its business, customers, suppliers, strategy or finances that is proprietary or confidential;
“Controller or Data Controller” shall have the meaning set out in the Data Protection Legislation;
“Customer Data” means the data inputted to the Software, or otherwise provided to IQBlade, by the Customer or Authorised Users for the purpose of using the Services;
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time, including:
a) the GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data, including any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK in respect of any of the foregoing; and
b) any guidance or codes of practice issued by the relevant data protection or supervisory authority and applicable to a party or by the Information Commissioner’s Office to the extent applicable (all as amended, replaced, updated or re-enacted from time to time);
“Data Subject” shall have the meaning set out in the Data Protection Legislation;
“Database Data” means any data or information, including Personal Data, provided by IQBlade to the Customer under these Conditions;
“Effective Date” means the date shown as such in the Particulars (or, if not stated, the date on which IQBlade first supplies any Services to the Customer);
“GDPR” means Regulation (EU) 2016/679 (or the “General Data Protection Regulation”);
“Initial Subscription Term” means the initial term of the agreement between a Customer and IQBlade as set out in the Particulars;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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;
“IQBlade” means IQBlade Limited (incorporated and registered in England and Wales with company number 12275817) whose registered office is at Redwood 2 Crockford Lane, Chineham Business Park, Basingstoke, Hampshire, RG24 8WQ;
“Normal Business Hours” means 9.00 am to 5.30 pm local UK time, each Business Day;
“Particulars” means the particulars set out in IQBlade’s quotation, scope of work, or online order confirmation and which sets out particulars of the agreement for the Customer to subscribe for the Services;
“Personal Data” shall mean personal data (as defined in the Data Protection Legislation);
“Processing” shall have the meaning set out in the Data Protection Legislation (and Process and Processed shall be construed accordingly);
“Processor” or “Data Processor” shall have the meaning set out in the Data Protection Legislation;
“Renewal Period” means a period described as such in paragraph 17.1;
“Services” means the subscription services provided by IQBlade to a Customer using the Software, as may be further described in the Particulars;
“Software” means the online software applications, data records or platform provided by IQBlade;
“Subscription Fees” means the subscription fees payable by the Customer to IQBlade for the User Subscriptions, as set out in the Particulars;
“Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Period(s);
“Trial Service” means a limited functionality, freemium/trial level service provided by IQBlade to a Customer for such period as may be agreed between the parties in writing or, if no such period is agreed, for a period of 60 days including, limited searches, search results and tracking capabilities as may be further described in the Particulars;
“User Subscriptions” means the number of user subscriptions purchased by the Customer, which entitle Authorised Users to access and use the Services in accordance with these Conditions as set out in the Particulars or as otherwise agreed in writing between the parties;
“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; and
“Website” means IQBlade’s website at www.iqblade.com or such other website address as may be notified to the Customer by IQBlade from time to time.
Reference to a paragraph is to a paragraph of these Conditions and paragraph headings shall not affect the interpretation of these Conditions.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under it from time to time.
Any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes email but not fax.
2 BASIS OF CONTRACT
The Customer’s order placed via the Website or otherwise communicated to IQBlade constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
An order shall only be deemed to be legally binding on IQBlade and the Customer once IQBlade accepts the order by either:
providing the Customer with the Particulars; or
by starting to provide the Services,
whichever happens first.
Any samples, descriptive matter or advertising issued by IQBlade, and any descriptions or illustrations contained in IQBlade’s brochures or on the Website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not have any contractual force.
These Conditions apply to the agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
If IQBlade provides the Customer with a quotation or proposal, it shall not constitute an offer until an order has been placed and accepted in accordance with these Conditions. Any quotation or proposal is only valid for a period of 30 days from its date of issue.
3 Trial SERVICE
Any Trial Service made available is intended to enable Customers to perform a temporary trial of the Services. Access to the Trial Service is obtained via website links that may be made available to the Customer by IQBlade. Trial Services are provided subject to these Conditions.
The Trial Services shall be subject to withdrawal at any time and without notice at IQBlade’s sole discretion. On withdrawal of the Trial Services by IQBlade, the Customer’s access to the Services shall also be withdrawn unless paragraph 3.6 applies
IQBlade reserves the right not to provide customer support services to Customers of Trial Services.
If the Customer wishes to upgrade the Trial Services to purchase a full subscription for the Services it may do so by submitting an order in accordance with paragraph 2 and making the applicable payment in accordance with paragraph 12.
4 USER SUBSCRIPTIONS
Subject to the Customer purchasing the User Subscriptions and otherwise complying with these Conditions, IQBlade grants to the Customer a non-exclusive, non-transferable right to permit Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations.
In relation to the Authorised Users, the Customer undertakes that:
the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User with IQBlade’s prior written consent, in which case the prior Authorised User shall no longer have any right to access or use the Services;
each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed at the request of IQBlade and that each Authorised User shall keep his password confidential;
it shall permit IQBlade to audit the Services provided to the Customer, in order to establish the name and password of each Authorised User and shall provide IQBlade with such access and assistance as it may reasonably require in order to undertake such audit. Such audit may be conducted no more than once per quarter, at IQBlade’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;
if any of the audits referred to in paragraph 4.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to IQBlade’s other rights, the Customer shall promptly disable such passwords and IQBlade shall not issue any new passwords to any such individual; and
if any of the audits referred to in paragraph 4.2.4 reveal that the Customer has underpaid Subscription Fees to IQBlade, including in the event that more than one Authorised User are found to use one User Subscription, in breach of these Conditions, then without prejudice to IQBlade’s other rights, the Customer shall pay to IQBlade an amount equal to such underpayment as calculated in accordance with the prices set out in the Particulars within 10 Business Days of the date of the relevant audit.
The Customer shall not (and shall procure that no other person using its access details shall) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
in a manner that is otherwise illegal or causes damage or injury to any person or property;
and IQBlade reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this paragraph and/or to suspend the access of any Authorised User(s) believed to be the source of such breach.
The Customer shall not:
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Conditions:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
access all or any part of the Services in order to build a product or service which competes with the Services ; or
use the Services to provide services to third parties; or
subject to paragraph 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this paragraph 4.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify IQBlade.
The rights provided under paragraph 4.1 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer or any other entity.
5 ADDITIONAL USER SUBSCRIPTIONS
Subject to paragraph 5.2 and paragraph 5.3, the Customer may, from time to time during the Subscription Term, purchase additional User Subscriptions and IQBlade shall grant access to the Services to such additional Authorised Users in accordance with the provisions of these Conditions.
If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify IQBlade in writing and IQBlade shall confirm such additional User Subscriptions as soon as practicable.
If IQBlade approves the Customer’s request to purchase additional User Subscriptions, the Customer shall pay to IQBlade the relevant fees for such additional User Subscriptions as set out in the Particulars (or, if not stated in the Particulars, IQBlade’s fees for such subscriptions from time to time) and, if such additional User Subscriptions are purchased by the Customer part-way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
In consideration of the Customer paying the Subscription Fees, IQBlade shall, during the Subscription Term, provide the Services to the Customer subject to these Conditions.
Subject to paragraphs 10.3 and 10.4, IQBlade shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 10.00 pm to 8.00 am UK time; and
unscheduled maintenance performed outside Normal Business Hours, provided that IQBlade has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance where this is practicable, by publishing such notice on the Website.
IQBlade will, as part of the Services and at no additional cost to the Customer, provide the Customer with IQBlade’s standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at IQBlade’s then current rates.
IQBlade shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services.
The Customer acknowledges that, where the Services involve interaction with or reliance on any social media channels, networking platforms or other third party services (‘Third Party Services’), IQBlade is subject to any terms imposed from time to time by the operators of such services, which may limit the nature of Services available at any time. IQBlade shall have the right to make such changes to the Services as it may reasonably deem necessary as a result of any change in the nature of those Third Party Services.
IQBlade will endeavour to provide the Customer with help and support for all defects and issues with the Services, but certain issues are outside of IQBlade’s influence or control. In particular, help and support will not be provided, and IQBlade will not otherwise have any liability, if any defect or issue arises directly or indirectly from:
the Customer’s failure, error, negligence or breach of this agreement;
the Customer’s introduction of any Viruses or any cookies, web-tags, code or script which have not been provided by IQBlade;
any defect or issue with any Customer websites, databases, equipment or systems;
any Customer Data;
any changes, modifications or repairs to the Services which are not undertaken or authorised by IQBlade, or any damage which the Customer cause to the Services; or
the transfer of data over communications networks and facilities, including the internet.
IQBlade may provide help and support in relation to such issues for an additional fee, at its discretion, where agreed in writing between the parties.
7 CUSTOMER DATA
The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
IQBlade shall follow its Archiving Procedure for Customer Data, which may be amended by IQBlade in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole remedy shall be for IQBlade to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by IQBlade in accordance with the Archiving Procedure. IQBlade shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by IQBlade to perform services related to Customer Data maintenance and back-up).
8 DATA PROTECTION
The parties do not anticipate that either party shall process Personal Data as a Data Processor on behalf of the other party under these Conditions. In the event that either party does process Personal Data as a Data Processor on behalf of the other party the parties shall enter into a data processing agreement in a form specified by IQBlade.
Each party shall be a Data Controller in its own right in respect of its processing of any Personal Data contained within the Database Data.
The Customer shall comply with the all applicable requirements of the Data Protection Legislation in respect of its use of the Database Data and shall not, through any act or omission, place IQBlade in breach of any Data Protection Legislation, including, without limitation, the Customer shall:
ensure that it provides a fair processing notice to all Data Subjects comprised within the Database Data within 30 days of receipt of that Database Data from IQBlade;
Where required under the Data Protection Legislation, ensure that it has obtained appropriate consent from Data Subjects comprised within the Database Data before contacting those Data Subjects for direct marketing purposes; and
Ensure that it does not transfer the Database Data to any third party unless it can do so compliantly under the Data Protection Legislation.
In respect of any Customer Data provided to IQBlade by the Customer under these Conditions, the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data comprised within such Customer Data to IQBlade so that IQBlade may lawfully Process the Personal Data in accordance with these Conditions.
The Customer shall indemnify and keep indemnified and defend at its own expense IQBlade against all costs, claims, damages or expenses incurred by IQBlade, or for which IQBlade may become liable, due to any failure by the Customer or its employees, agents or sub-contractors to comply with any of its obligations under this paragraph 8 or the Data Protection Legislation.
9 THIRD PARTY WEBSITES
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.
IQBlade makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
IQBlade does not endorse or approve any third-party website nor the content of any third-party website made available via the Services.
10 IQBLADE’S OBLIGATIONS
IQBlade shall perform the Services with reasonable skill and care.
IQBlade shall not be liable for any non-conformance with these Conditions to the extent that any such non-conformance is caused by use of the Services contrary to IQBlade’s instructions, or by modification or alteration of the Services by any party other than IQBlade or IQBlade’s duly authorised contractors or agents.
In respect of a breach of paragraph 10.1, IQBlade will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly or provide the Customer with an alternative means of accomplishing the desired outcome. Subject to any alternative remedy that may be available, such correction or substitution constitutes the Customer’s sole remedy for any breach of paragraph 10.1.
Notwithstanding paragraphs 10.1 and 10.2, IQBlade:
provides the Services on an “as-is” basis and does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from 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.
11 CUSTOMER’S OBLIGATIONS
The Customer shall:
11.1.1 provide IQBlade with:
(1.1.a) all necessary co-operation in relation to the agreement; and
(1.1.b) all necessary access to such systems or information as may be required by IQBlade,
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
11.1.2 comply with all applicable laws and regulations with respect to its activities which relate to the Services;
11.1.3 carry out all other Customer responsibilities to IQBlade whether set out in these Conditions or otherwise 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, IQBlade may adjust any agreed timetable or delivery schedule as reasonably necessary;
11.1.4 ensure that the Authorised Users use the Services in accordance with these Conditions and shall be responsible for any Authorised User’s breach thereof;
11.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for IQBlade, its contractors and agents to perform their obligations under these Conditions, including the Services;
11.1.6 be solely responsible for the placing and management of any cookies or web-tags on the Customer’s website(s);
11.1.7 ensure that its network and systems comply with any relevant specifications provided by IQBlade from time to time; and
11.1.8 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to IQBlade’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
12 CHARGES AND PAYMENT
The Customer shall pay the Subscription Fees to IQBlade for the User Subscriptions in accordance with this paragraph 12.
The Customer shall on or before the Effective Date provide to IQBlade valid, up-to-date and complete debit or credit card details or, if card payment is not reasonably possible, approved purchase order information acceptable to IQBlade and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
its debit or credit card details to IQBlade, the Customer hereby authorises IQBlade to charge such card:
on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
subject to paragraph 17.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
its approved purchase order information to IQBlade, IQBlade shall invoice the Customer:
on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
subject to paragraph 17.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
Without prejudice to the Customer’s right to withhold any portion of an invoice that may be the subject of a genuine dispute, if IQBlade has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of IQBlade:
IQBlade may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and IQBlade shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of IQBlade’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in these Conditions:
shall be payable in pounds sterling;
shall be payable in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law);
are, subject to paragraph 15.4, non-cancellable and non-refundable;
are exclusive of value added tax, which, where paragraph 12.2.2 applies shall be added to IQBlade’s invoice(s) at the appropriate rate and where paragraph 12.2.1 applies, shall be payable by the Customer in addition.
IQBlade shall be entitled to increase the Subscription Fees or the fees payable in respect of additional User Subscriptions at the start of each Renewal Period upon 30 days’ prior written notice to the Customer.
Without prejudice to paragraph 12.5, IQBlade may by written notice to the Customer increase the Subscription Fees on an annual basis with effect from each anniversary of the Effective Date in accordance with the percentage increase in the Retail Prices Index in the preceding 12-month period.
13 PROPRIETARY RIGHTS
The Customer acknowledges and agrees that IQBlade and/or its licensors own all Intellectual Property Rights in the Services, Software, Database Data and Website. Except as expressly stated herein, these Conditions do not grant the Customer any rights to, or in, such Intellectual Property Rights or any other rights or licences in respect of the Services.
IQBlade confirms that it is authorised to grant the rights it purports to grant under, and in accordance with, these Conditions.
The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
In relation to the Customer Data or other materials provided by or on behalf of the Customer, the Customer:
and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Data and such materials; and
grants IQBlade a fully paid-up, non-exclusive, royalty-free licence, with a right to grant sub-licences, to use, copy and modify the Customer Data and such materials for the Subscription Term for the purpose of providing the Services to the Customer.
The Customer warrants that the receipt and use of the Customer Data, or other materials provided by or on behalf of the Customer, in the performance of the Services by IQBlade, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party.
If there is a suggestion that receipt and use of the Customer Data, or other materials provided by or on behalf of the Customer, by IQBlade or anyone acting on its behalf infringes the rights of a third party, IQBlade reserves the right to remove the offending content from the Service as soon as practicable (and require the Customer to delete any such content) and/or suspend the Services, in whole or in part, until the Customer can evidence to IQBlade’s satisfaction that no such infringement is taking place.
Each party may be given access to Confidential Information relating to the other party in order to perform its obligations in respect of the Services. A party’s Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party’s lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence; or
Each party shall hold the other’s Confidential Information in confidence and, subject to paragraph 14.3 or unless required by law, not make the other’s Confidential Information available to any third party, nor use the other’s Confidential Information for any purpose other than the implementation of the Services.
A party may disclose Confidential Information relating to the other party:
where required to disclose such Confidential Information by law, by any court of competent jurisdiction or by any regulatory or administrative body, provided that, unless prohibited from doing so by law, it gives reasonable prior notice to the other party of such disclosure; and
to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this paragraph 14.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, officers, representatives or advisers in violation of these Conditions.
The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute IQBlade’s Confidential Information.
IQBlade acknowledges that the Customer Data is the Confidential Information of the Customer.
No party shall make, or permit any person to make, any public announcement concerning the Services or the agreement between them without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction. IQBlade shall be permitted to advertise that the Customer is one of its clients.
The Customer shall indemnify IQBlade against 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 use of the Services other than in accordance with the terms of the agreement; and/or
any materials provided by the Customer, including Customer Data, used by IQBlade in accordance with the agreement and/or as instructed by the Customer or anyone acting on its behalf.
16 LIMITATION OF LIABILITY
This paragraph 16 sets out the entire financial liability of IQBlade (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
arising under or in connection with this agreement;
in respect of any use made by the Customer of the Services or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with its agreement with the Customer.
Except as expressly and specifically provided:
the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. IQBlade shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to IQBlade by the Customer in connection with the Services, or any actions taken by IQBlade at the Customer’s direction;
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
any Trial Services are provided to the Customer on an “as is” basis.
Nothing in these Conditions excludes the liability of IQBlade:
for death or personal injury caused by IQBlade’s negligence;
for fraud or fraudulent misrepresentation; or
any other liability to the extent it may not be limited or excluded by law.
Subject to paragraphs 16.2 and 16.3:
IQBlade shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: (i) depletion of goodwill; (ii) loss or corruption of data or information (except where caused directly by IQBlade’s negligence); (iii) pure economic loss; or (iv) special, indirect or consequential loss, costs, damages, charges or expenses, in each case however arising under or in relation to the agreement; and
IQBlade’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the agreement shall be limited to the lesser of: (i) £50,000; or (ii) the total Subscription Fees payable for the User Subscriptions in respect of the 12 months immediately preceding the date on which IQBlade received notification of the claim.
17 TERM AND TERMINATION
The agreement between the parties shall, unless otherwise terminated as provided in this paragraph 17, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
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 the agreement shall terminate upon the expiry of the Initial Subscription Term or applicable Renewal Period; or
otherwise terminated in accordance with the provisions of this agreement.
Without affecting any other right or remedy available to it, IQBlade may terminate the agreement with immediate effect by giving written notice to the Customer if:
the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
the Customer commits a material breach of any other term of this agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
the Customer repeatedly breaches any of the terms of this agreement which breach is irremediable or (if such breach of remediable) fails to remedy that breach within a 30 day period after being notified in writing to do so;
the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;
the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraphs 17.2.3 to 17.2.9 (inclusive); or
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
On termination of this agreement for any reason:
all licences granted under the agreement shall immediately terminate and the Customer shall immediately cease (and ensure that all Authorised Users cease) all use of the Services;
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;
IQBlade may destroy or otherwise dispose of any of the Customer Data in its possession, unless IQBlade receives, no later than ten days after the effective date of termination, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. IQBlade shall use reasonable commercial 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 (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by IQBlade in returning or disposing of Customer Data; and
any provision of the agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, including paragraphs 7 (Customer Data), 8 (Data Protection), 13 (Proprietary Rights), 14 (Confidentiality), 15 (Indemnity), 16 (Limitation of liability), 17.3 (Consequences of Termination) and 19-28(General); and
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.
18 FORCE MAJEURE
IQBlade shall have no liability to the Customer if it is prevented from or delayed in performing its obligations under this agreement, due to acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of IQBlade or any other party); failure of a utility service or transport or telecommunications network; 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; fire, flood, storm; or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these Conditions 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.
21 RIGHTS AND REMEDIES
Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
If any of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, it shall be deemed deleted and the other provisions shall remain in full force and effect.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever minimum modification is necessary to give effect to the commercial intention of the parties.
23 ENTIRE AGREEMENT AND CONFLICT
These Conditions, the Particulars and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each party acknowledges that in entering into the agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the agreement. Nothing in this paragraph shall limit or exclude any liability for fraud.
To the extent of any inconsistency between any of the provisions in these Conditions, the Particulars or any other incorporated documents, the provisions in the Particulars shall prevail, followed by these Conditions, followed by the other documents.
The Customer shall not, without the prior written consent of IQBlade, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under its agreement with IQBlade.
IQBlade may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under its agreement with the Customer.
25 THIRD PARTY RIGHTS
The agreement between the parties does not confer any rights on any person or party whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, save that third party suppliers of the Database Data, the parties to this agreement and, where applicable, their successors and permitted assigns may enforce a term or condition of these Conditions.
Any notice required to be given to either IQBlade or the Customer shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post or sent by email to the other party at its registered office for the time being or, in the case of email, to firstname.lastname@example.org or the address used for the customer’s order, as appropriate.
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 on the second Business Day after posting, subject to evidence of earlier receipt.
27 GOVERNING LAW
The agreement between the parties 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.
Each party irrevocably agrees that the courts of England 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).