Subscription terms

The Services Proposal and the Subscription Terms (including any Schedules) together are referred to as the “Agreement”.

Unless defined in the Services Proposal, all capitalised terms used in the Services Proposal have the meaning given to them in the Subscription Terms. If there is any conflict between the provisions of the Services Proposal and the Subscription Terms, the Services Proposal takes precedence.

The following terms and conditions shall govern the provision and use of the Services.

Definitions and Interpretation
1. In addition to any terms defined in the Services Proposal, the following definitions and rules of interpretation apply to this Agreement:
2. “API” means any application programming interface(s) operated or used by TOD for provision of the Services to the Customer.
3. “Authorised Users” means those employees and independent contractors of the Customer who are authorised by the Customer to use the Software under this Agreement.
4. “Business Day” means a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.
5. “Confidential Information” means all confidential or proprietary information (however recorded or preserved) disclosed by one party or its employees, officers, subcontractors, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, products, services, data, know-how, or trade secrets of the disclosing party, including anything specified as being Confidential Information in clauses 10.4 and 10.5.
6. "Configuration Services" if included in the Services Proposal, means any configuration services to be performed by TOD to configure the Software for use by the Customer in accordance with the Specification.
7. “Controller, Processor, Data Subject, Personal Data, personal data breach, Processing and appropriate technical and organisational measures” shall each have the meaning given to it in the Data Protection Legislation.
8. "Customer" means the entity identified as the customer in the Services Proposal.
9. “Customer Data” means any commercial or proprietary data which is uploaded or otherwise submitted to the Software directly by the Customer, its authorised users, or by TOD on the Customer's behalf, including any data submitted into the Software indirectly via any third party application used by the Customer excluding any Derived Data.
10. “Personal Data” means any Personal Data contained in the Customer Data.
11. “Data Protection Legislation” means all applicable privacy and data protection laws, including the EU General Data Protection Regulation (Regulation 2016/679) ("GDPR"), the GDPR as defined in section 3(10) (as supplemented by section 205(4)) of the DPA 2018 ("UK GDPR"), the Data Protection Act 2018 ("DPA 2018"), and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426)).
12. “Data Subject Request” means a request from a Data Subject to access, correct, amend, transfer, or delete that Data Subject's Personal Data consistent with their rights under the Data Protection Legislation.
13. “Derived Data” means any data which is derived from the Customer’s use of the Services or the processing by TOD of Customer Data, which shall include: (i) any data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but shall exclude any Personal Data.
14. “Effective Date” means the date identified as such on the applicable Services Proposal.
15. "End-client" means the clients of the Customer.
16. "End-client Limit" means maximum number of End-clients based on the pricing tier selected by the Customer as set out in the applicable Services Proposal.
17. "Fees" means the fees payable in consideration of the provision of the Services set out in the Services Proposal.
18. “Force Majeure Event” has the meaning set out in clause 15.3.
19. “Insolvency Event” means, with respect to a Party, (a) entering into a composition or arrangement with its creditors other than for the sole purpose of a solvent reconstruction; (b) an inability to pay its debts as they become due; (c) a person becoming entitled to appoint or appointing a receiver or an administrative receiver over that Party’s assets; (d) a creditor or encumbrancer attaches or takes possession of the whole or any part of that Party's assets which is not discharged within 14 days; or (e) any event occurs, or proceeding is taken, in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in (a) to (d) above.
20. “Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill 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.
21. "Normal Business Hours" means 9.00 am to 5.00 pm local UK time during a Business Day.
22. "Output" means any or all reports, data, information, works or materials obtained by the Customer or Authorised Users (as appropriate) through use of the Services. For the avoidance of doubt, "Output" excludes Customer Data.
23. “Party” means a party to this Agreement, being either TOD or the Customer, and “Parties” means both of them.
24. "Services" means the provision by TOD to allow Authorised Users to access and use the Software, and any Configuration Services to be provided under this Agreement (in each case as applicable and given the context in which the term "Services" is used).
25. "Services Proposal" means the services proposal submitted by the Customer for the provision by TOD of the Services in such form as TOD may require, which is agreed by TOD.
26. “Software” means TOD's software application] (including any related API from time to time) to which the Customer will be granted remote access pursuant to the terms and conditions of this Agreement.
27. “Specification” means the functional specification for the Software as set out https://www.tod.tax..
28. "Standard Contractual Clauses" means together, the standard contractual clauses for the transfer of Personal Data to third countries pursuant to the GDPR, adopted by the European Commission under Commission Decision (EU) 2021/914 2021 ("EU SCCs") and the UK International Transfer Addendum to the EU SCCs ("UK Addendum").
29. “Sub-processor” means any natural or legal person, public authority, agency, or other body which possesses Personal Data on behalf of a data Controller or a data Processor.
30. “Subscription Fees” means the subscription fees detailed in the Services Proposal payable by the Customer to TOD for use of the Software [and the Configuration Services] (as amended from time to time in accordance with the terms and conditions of this Agreement).
31. "Term" means the Initial Term (as defined in clause 12.1 and all Renewal Terms (as defined in clause 12.2) collectively.
32. "TOD" or "Tax on Demand" means On Demand Technology Ltd, a company incorporated and registered in England and Wales with company number 13334851 and registered address at Lumaneri House Blythe Gate, Blythe Valley Park, Solihull, United Kingdom, B90 8AH, who shall provide the Services subject to the terms of this Agreement.
33. “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, network, data, or the user experience, including worms, Trojan horses, viruses and other similar things or devices.
34. In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to writing or written includes e-mail; (d) references to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement; (e) any words following 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, description, definition, phrase or term preceding those terms.
Access to the Software and Outputs
1. Subject to the Customer paying the Subscription Fees and complying with the terms and conditions of this Agreement, TOD hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit the Authorised Users to use the Software during the Term.
2. The Customer shall not access, store, distribute or transmit any Viruses or any material during its use of the Software that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. TOD reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's and Authorised Users' access to any material that breaches the provisions of this clause 2.2.
3. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under this Agreement, the Customer shall not, and shall not 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 (including its object code and source code).
4. The Customer shall not, and shall not attempt to: (a) access all or any part of the Software in order to build a product or service which competes with the Software; (b) make the Software or any of the Services available to any third party except to Authorised Users; or (c) attempt to obtain, or assist any third party in obtaining, access to the Software, other than as provided under this clause 2.
5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify TOD.
6. The Customer shall and shall procure that it's End-Client's shall not: (a) except to the extent required by applicable law or regulation (and solely for the purpose of that disclosure), redistribute, retransmit, or disseminate the Outputs; of (b) remove or attempt to remove TOD's marks (if included) or other branding from the Outputs.
7. The Customer acknowledges and agrees that each Authorised User must keep a secure password for their use of the Software which must be kept confidential and secure against unauthorised access or use (including by any other Authorised User).
8. The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any affiliate, subsidiary or holding company of the Customer.
Subscription Fees and End-clients
1. The Subscription Fees are linked to the number of End-clients of the Customer that will be reviewed and processed by the Software, which is subject to the End-client Limit. The Customer acknowledges and agrees that TOD will monitor the Customer's use of the Software for compliance with the End-client Limit.
2. Where TOD learns that the Customer’s use of the Software is exceeding the End-client Limit, TOD shall be entitled to increase the Subscription Fees in line with the number of End-clients being reviewed or processed by the Software and backdated from the date on which the End-client Limit was exceeded, pro-rated for the remainder of the Initial Term or the current Renewal Term (as applicable).
TOD’s Obligations
1. TOD shall (a) provide the Services to the Customer on and subject to the terms and conditions of this Agreement; and (b) use commercially reasonable endeavours to ensure that the Software conforms to the Specification.
2. Notwithstanding clause 4.1, the Customer acknowledges that the Software may evolve over time and that functionality may be added or removed from time to time.
3. TOD does not warrant that the Customer's use of the Software will be uninterrupted or error-free, or that the Software and/or the information or results obtained by the Customer through its use of the Software will meet the Customer's requirements. Subject to its obligations under Data Protection Legislation, TOD is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Customer Data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
4. TOD shall not be liable for any breach of its obligation under clause 4.1(b) to the extent any non-conformance with the Specification is caused by the Customer's use of the Software contrary to TODs instructions, or modification or alteration of the Software by any party other than TOD or TOD's duly authorised contractors or agents.
5. If the Software does not conform materially with the Specification, TOD will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the expected result or function stipulated in the Specification. Such correction or substitution constitutes the Customer's sole and exclusive remedy for such non-conformance.
6. This Agreement shall not prevent TOD from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement.
Customer’s Obligations
1. The Customer shall cooperate with TOD in all respects in relation to this Agreement, including granting to TOD all necessary access to information and Customer Data as may be required by TOD from time to time to fulfil its obligations under this Agreement, including granting to TOD full and unrestricted access to the Customer’s account in order for TOD to provide support for, or to fix any errors in, the Software.
2. The Customer shall be responsible for setting the access rights for each of its Authorised Users and shall ensure that all Authorised Users' use of the Software is strictly in accordance with the terms and conditions of this Agreement. The Customer shall be responsible for any Authorised User's breach of this Agreement.
3. The Customer is responsible for maintaining any Dependencies stated in the Services Proposal and shall ensure that its network and systems comply with the relevant specifications that have been agreed with TOD to be compatible with the Software. The Customer acknowledges and agrees that if it moves away from or adopts different dependencies or software packages or different version of the dependencies as set out in the Services Proposal, that those dependencies may not be compatible with the Software. The Customer shall be responsible for checking with TOD whether any new dependencies or versions are compatible with the Software before the Customer adopts them. The Customer shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to TOD's data centres.
4. The Customer shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
Suspension of Service
1. TOD may suspend the access to or use of the Software by any or all of the Authorised Users if TOD determines that use of the Services:
  1. is in breach of this Agreement;
  2. poses a security risk;
  3. is adversely impacting or may adversely impact (as appropriate) the Services or any service provided by TOD to a third party;
  4. where it is in the legitimate interests of TOD to do so, including where there is a reasonable risk that the Customer may default in the payment of the Subscription Fees,
  5. and TOD shall use its reasonable endeavours to notify the affected Authorised Users before the suspension takes effect and as soon as reasonably practicable thereafter, and may use any reasonable means to do so.
  6. Where TOD suspends access to or use of the Software under clause 6.1, the Customer remains responsible for all Subscription Fees.
Customer Data and Derived Data
1. The Customer shall own all right, title and interest in and to all the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
2. The Customer warrants and represents that it has the authority, including all necessary rights, licences, and permissions, to upload and use, and to permit TOD to use and Process, the Customer Data in accordance with this Agreement.
3. The Customer hereby grants to TOD a worldwide, non-exclusive, irrevocable, royalty free licence during the Term to use the Customer Data for the purpose of providing the Services.
4. The Customer acknowledges that the results, data and output obtained by the Customer through its use of the Software is based on the reliability, integrity, accuracy and quality of the Customer Data. TOD is not responsible for and does not provide any warranty relating to the results, data and output obtained through the Customer's use of the Software and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, or fitness for particular purpose and any use by the Customer of the results, data and output will be at the Customer's own risk.
5. The Customer undertakes to TOD that (as between the Parties) the Customer assumes all risk of loss incurred or sustained by the Customer arising from reliance on the Service and the results, data and output from the Service, including with respect to compliance with applicable law and regulations and acknowledges that the results, data and output obtained by the Customer through use of the Service are provided 'as is'.
6. The Customer acknowledges that TOD may use the Customer Data to improve the performance and functionality of the Software to develop improvements, updates, upgrades, modifications, or derivative works thereof which shall constitute Improvements (as defined in clause 9.2).
7. TOD may track and analyse the Customer’s and its Authorised Users' use of the Software for the purposes of security and to help TOD improve the Services, including the Software.
8. Each Party shall comply with its obligations under the Data Processing Addendum available here https://www.tod.tax/DPA ("DPA"). The DPA is in addition to, and does not relieve, remove, or replace, the Parties' respective obligations or rights under the Data Protection Legislation.
9. The Customer shall indemnify and hold harmless TOD from and against all losses, damages, liabilities and claims, arising from or in relation to any third party claim that the processing and use of the Customer Data in accordance with this Agreement infringes or misappropriates any third party Intellectual Property Rights or breaches Data Protection Legislation.
Fees and Payment
1. The Customer shall pay the Fees set out in the Services Proposal in accordance with this clause 8 and any payment terms specified in the Services Proposal without set-off in respect of any liability of TOD.
2. Unless otherwise stated in the Services Proposal, the Customer shall pay the Fees on or before the Effective Date and monthly thereafter by direct debit to the bank account nominated in writing by TOD.
3. If TOD has not received payment by the due date, and without prejudice to any other rights and remedies of TOD, TOD may, without liability: (i) disable the Customer's and all Authorised Users’ access to all or part of the Software until the invoice(s) concerned are paid in full; and/or (ii) charge the Customer interest on a daily basis on any overdue amounts at an annual rate equal to 5% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
4. Fees are payable in the currency detailed in the Services Proposal and are non-cancellable and non-refundable. Fees are stated exclusive of value added or other applicable sales tax, which shall be added to TOD's invoice(s) at the appropriate rate.
5. The Customer shall make all payments under this Agreement without withholding or deduction of, or in respect of, any and all taxes, unless required by law. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to TOD such additional amount as will ensure that TOD receives the same total amount that it would have received if no such withholding or deduction had been required.
6. TOD shall be entitled to increase the Fees at the start of each Renewal Term upon sixty (60) days' prior written notice to the Customer.
Intellectual Property Rights
1. All Intellectual Property Rights in and to the Software, the Services, the Outputs, and the Derived Data, shall belong to and remain vested in (or automatically upon creation shall vest in), TOD. Except for the licence granted to the Customer in clause 2.1, nothing in this Agreement grants to the Customer any rights to or in any Intellectual Property Rights in the Software or the Services.
2. Without prejudice to clause 2.4 or clause 9.1, to the extent that the Customer’s or any Authorised User’s use of the Software results in any modifications, adaptations, developments, or any derivative works of or to the Software or the Services (“Improvements”), then notwithstanding any rights or remedies of TOD under clause 2.4 above, any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by TOD.
3. TOD makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software.
4. TOD shall defend the Customer against any third party claim that the use of the Software in accordance with this Agreement infringes any third party Intellectual Property Right and shall indemnify Customer for and against any amounts awarded against the Customer in judgment or settlement of such claims, provided that (i) TOD is given prompt notice of such claim; (ii) the Customer provides reasonable co-operation to TOD in the defence and settlement of such claim, at TOD's expense; (iii) TOD is given sole authority to defend or settle the claim; and (iv) the Customer makes no admission of liability or fault itself or on behalf of TOD.
5. In the defence or settlement of any claim pursuant to clause 9.4 above, TOD may at its sole option and expense either: (i) procure for the Customer the right to continue using the Software in the manner contemplated by this Agreement; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate this Agreement immediately by providing written notice to the Customer, without liability to the Customer.
6. TOD shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 10.4) if the alleged infringement is based on: (i) modification of the Software by anyone other than TOD; (ii) the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by TOD; or (iii) the Customer’s or ay Authorised User’s use of the Software after notice of the alleged or actual infringement from TOD or any appropriate authority; or (iv) use or combination of the Software with any other software or hardware or the Customer Data, in circumstances where, but for such combination, no infringement would have occurred.
7. The Customer shall defend TOD against all or any costs, claims, damages or expenses incurred by TOD in respect of any third party claim relating to the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement, provided that (i) the Customer is given prompt notice of such claim; (ii) TOD provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (iii) the Customer is given sole authority to defend or settle the claim; and (iv) TOD makes no admission of liability or fault itself or on behalf of the Customer.
Confidential Information
1. Each Party agrees to keep confidential and not use for any purpose other than the performance of its obligations under this Agreement, all Confidential Information of the other Party.
2. Each Party will only disclose or reveal any of the other Party’s Confidential Information disclosed to it to: (i) those of its personnel who are required in the course of their duties to receive it for the purpose for which it is supplied (provided that each Party shall ensure that any such personnel to whom it discloses the other Party's Confidential Information comply with this clause 10.2); and (ii) any court, governmental or administrative authority competent to require the same, or as required by any applicable law, regulation, or governmental or regulatory body which is lawfully entitled to require the disclosure (and in each such case, the Party shall, if legally permissible, notify the other Party of the requirement as soon as reasonably practicable and use commercially reasonable endeavours to discuss with the other Party and agree any possible limitations or restrictions on disclosure in advance to the extent permitted by law).
3. The provisions of clauses 10.1 and 10.2 shall not apply to information that: (i) is or becomes generally available in the public domain otherwise than arising in connection with a breach of this clause by the recipient; (ii) is lawfully in the recipient's possession free of any restrictions as to its use or disclosure at the time of disclosure by the disclosing Party; (iii) is lawfully acquired from an independent third party who did not itself obtain it under an obligation of confidentiality; or (iv) is independently developed without access or reference to any information disclosed by the disclosing Party.
4. The Customer acknowledges that the Software, including the way in which data, information, works and materials are visualised when using, or are otherwise presented by, the Software and the results of any performance tests of the Software, constitute TOD's Confidential Information.
5. TOD acknowledges that the Customer Data is the Confidential Information of the Customer.
6. The provisions of this clause 10 shall survive termination or expiry of this Agreement, however arising.
Limitation of Liability
1. This clause 11 sets out the entire financial liability of TOD to the Customer arising under or in connection with this Agreement, including in respect of any use made by the Customer or its Authorised Users of the Software and the Services.
2. Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for the Outputs and any information or results obtained by Authorised Users from use of the Software, and for conclusions drawn from such use. TOD shall have no liability for any damage caused by errors or omissions in any information or data, or any actions taken by TOD at the Customer's direction. No other party is entitled to rely on the output, information or results produced by the Customer through its use of the Software for any purpose whatsoever.
3. The Customer hereby acknowledges that (a) the Outputs rely upon third party information and information which is dynamic in nature, and may fluctuate over time, including Customer Data and third-party data; and (b) TOD shall not be responsible, and (to the extent permitted by law) excludes all liability in relation to, all such information.
4. The Customer undertakes to TOD (as between the Parties) that the Customer assumes all risk of loss incurred or sustained by the Customer and/or End-clients arising from reliance on the Services and the Outputs including with respect to compliance with applicable laws and regulations and acknowledges that Outputs are provided "as is" with no warranty or guarantee as to accuracy or completeness. The Customer is solely responsible for ensuring that output of the Services or Software used for any reporting purposes are used and reported in accordance with all applicable laws and regulations.
5. Except as expressly and specifically provided in this Agreement, 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. The Customer acknowledges that the Software, the Services, the Output, and any information provided by or on behalf of TOD are provided to the Customer on an "as is" basis.
6. Nothing in this Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
7. Subject to clause 11.6, TOD shall not be liable for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, including loss of profit, loss of business, loss of goodwill, loss of or corruption of data, loss caused or contributed to by any agent or Representative of the Customer, loss caused as a result of the Software being unavailable as a result of planned downtime for the Software, as notified to the Customer from time to time, loss arising from any failure of the Customer’s infrastructure and/or utilities, loss caused as a result of the Software being unavailable due to a Force Majeure Event, or loss caused by the failure or delay of any third party application or service or network.
8. Subject to the other provisions of this clause 11, TOD's entire, aggregate liability to the Customer whether in contract, tort (including negligence), for breach of statutory duty or otherwise arising out of or relating to this Agreement shall be limited to the greater of the total Fees paid by the Customer during the twelve (12) months immediately preceding the date on which the claim arose.
9. Audit
  TOD is entitled on reasonable notice from time to time to require the Customer to permit or procure the permission for a duly authorised employee, agent or representative of TOD to audit the use of the Software, and to assess compliance with this Agreement, including for this purpose to access premises and systems, and to take copies of records.

Term and Termination
1. The Services shall commence on the Effective Date and continue for 12 months (“Initial Term”) unless the Agreement (as defined below) is terminated earlier in accordance with this clause.
2. After the Initial Term, the Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless (a) either Party provides the other with written notice of at least thirty (30) days prior to the beginning of any such Renewal Term electing not to renew the Agreement; or (b) the Agreement is otherwise terminated in accordance with this clause.
3. If the Customer wishes to terminate this Agreement during a Renewal Term (or fails to give the requisite termination notice to TOD prior to the start of a new Renewal Term), the Fees due for the remainder of that Renewal Term shall become immediately due and payable to TOD within thirty (30) Business Days.
4. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if: (i) the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment; or (ii) if the other Party commits a material breach of any terms of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) Business Days after being notified in writing to do so; or (iii) the other Party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof, or suffers an Insolvency Event.
5. Without prejudice to any other rights or remedies hereunder to which TOD may be entitled, if TOD knows or has reasonable grounds to suspect that the Customer is acting in breach of its obligations under this Agreement (including failure to pay the Fees), TOD may notify the Customer in writing accordingly and may suspend the Customer’s and all Authorised Users’ access to the Software until such breach can be remedied, or until TOD is satisfied, acting reasonably, that its suspicions are unfounded.
6. On termination of this Agreement for any reason (a) all licences granted under this Agreement shall immediately terminate; (b) all Fees which are outstanding on the date of termination shall become immediately due and payable; (c) subject to the terms and conditions of this Agreement, each Party shall return or destroy and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party; and (d) 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
General
1. Entire agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
2. Assignment. The Customer shall not assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of TOD. TOD 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 this Agreement without requiring any additional consent from the Customer.
3. Force Majeure. Neither Party is responsible for failing to fulfil its obligations (other than its payment obligations) under this Agreement due to causes beyond its reasonable control that directly or indirectly delay or prevent timely performance (“Force Majeure Event”). Any dates or times by which each Party is required to render performance under this Agreement shall be postponed automatically to the extent that the Party is delayed or prevented from meeting them by a Force Majeure Event. If the Force Majeure Event prevents, hinders, or delays the affected Party’s performance of its obligations for a continuous period of more than 30 days, the affected Party may terminate this Agreement by giving 30 days’ written notice to the other Party.
4. Notices. Any notice to be given under this Agreement shall be in writing and delivered by hand (delivery by courier shall be regarded as delivery by hand), email (to the email address notified by a Party from time to time) or recorded delivery (or in the case of overseas post, by airmail) only to the Party concerned at the relevant address shown at the top of this Agreement (or such other address as may be notified by a Party to the other from time to time) and shall take effect:
  1. if delivered by hand, at the time of delivery;
  2. if delivered by email at the time of transmission, or, if that time falls outside Business Hours in the place of receipt, when Business Hours resume;
  3. if delivered by recorded delivery, at the expiry of two (2) Business Days after the time of posting; or
  4. if delivered by airmail, at the expiration of seven (7) Business Days after the time of posting.
5. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised Representatives).
6. Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement 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.
7. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
8. Relationship. The relationship between the Parties is that of independent contractors and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties, nor authorise any Party to make or enter into any commitments for or on behalf of the other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person. The Parties acknowledge that the arrangements between them are non-exclusive. Nothing contained in this Agreement shall prohibit either of the Parties from conducting business activities with other third parties.
9. Third party rights. A person who is not a Party to this Agreement shall not have any right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
10. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
11. Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
12. Jurisdiction. 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 this Agreement, its subject matter or formation.