Terms & Conditions

1. Definitions

1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:

“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

“Business Day” means any weekday other than a bank or public holiday in England;

“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

“Charges” means the following amounts:

(a) the amounts specified in the Services Order Form;

(b) such amounts as may be agreed in writing by the parties from time to time; and

(c) amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of the Agreement) by the time spent by the Provider’s personnel performing the Support Services (rounded down by the Provider to the nearest quarter hour);

“Control” means the legal power to control directly or indirectly the management of an entity (and “Controlled” should be construed accordingly);

“Customer” means the person or entity identified as such in the Services Order Form;

“Customer Confidential Information” means:

(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked as “confidential”; or

(ii) should have been reasonably understood by the Provider to be confidential; and

(b) the Customer Data.

“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

“Customer Indemnity Event” has the meaning given to it in Clause 16.3;

“Customer Personal Data” means Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;

“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

“Effective Date” means the date upon which the parties execute a hard-copy Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by the Provider on the Provider’s website, the date upon which the Provider sends to the Customer an order confirmation;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Hosted Services” means Business Management System which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

“Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect/ a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer;

(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;

“Hosted Services Specification” means the specification for the Platform and Hosted Services set out in the Services Order Form and in the Documentation;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

“Minimum Term” means, in respect of the Agreement, the period of 3 months beginning on the Effective Date;

“Permitted Purpose” means the customer has access to store and manage data/ information on the permitted platform;

“Personal Data” has the meaning given to it in the Data Protection Act 1998;

“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

“Provider” means NEW TARGETS LTD, a company incorporated in England and Wales (registration number 07551499) having its registered office at FIRST FLOOR OFFICE, 16-18 WEST STREET, THE SQUARE, ROCHFORD, ESSEX SS4 1AJ, established under the laws of England and Wales having its principal place of business at HADLEIGH BUSINESS CENTRE, 351-359 LONDON ROAD, ESSEX, SS72BT;

“Provider Indemnity Event” has the meaning given to it in Clause 16.1;

“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

“Services Order Form” means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

“Set Up Services” means the configuration, implementation and integration of the Hosted Services in accordance with the Services Order Form;

“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;

“Supported Web Browser” means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari;

“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

“Update” means a hotfix, patch or minor version update to any Platform software;

“Upgrade” means a major version upgrade of any Platform software; and

“Written notice” and “in writing” incudes any correspondence delivered via post and/ or email.

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 19.

2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.

3. Set Up Services

3.1 The Provider shall provide the Set Up Services to the Customer.

3.2 The Provider shall use all reasonable endeavours to ensure that the Set Up Services are provided upon or promptly following the Effective Date.

3.3 The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 17.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

4. Hosted Services

4.1 The Platform will automatically generate an Account for the Customer on the Effective Date and will provide to the Customer login details for that Account.

4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.

4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;

(b) the Hosted Services may only be used by the named users identified in the Services Order Form, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; and

(c) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Services Order Form, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.

4.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Hosted Services;

(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;

(d) the Customer must not republish or redistribute any content or material from the Hosted Services; and

(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.

4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.

4.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.

4.7 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 1 (Acceptable Use Policy).

4.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.9 The Customer must not use the Hosted Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

4.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

5. Maintenance Services

5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.

5.2 The Provider shall provide the Maintenance Services with reasonable skill and care.

5.3 The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).

5.4 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6. Support Services

6.1 The Provider shall provide the Support Services to the Customer during the Term.

6.2 The Provider shall provide the Support Services with reasonable skill and care.

6.3 The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).

6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7. Customer obligations

7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a) co-operation, support and advice;

(b) information and documentation; and

as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

7.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.

8. Customer Data

8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement.

8.2 The Customer warrants to the Provider that the use of the Customer Data by the Provider in accordance with the Agreement will not:

(a) breach the provisions of any law, statute or regulation;

(b) infringe the Intellectual Property Rights or other legal rights of any person; or

in each case in any jurisdiction and under any applicable law.

8.3 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.

8.4 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 8.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

9. No assignment of Intellectual Property Rights

9.1 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

10. Charges

10.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

10.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.

10.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

10.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation expiring on any anniversary of the date of execution of the Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.

11. Payments

11.1 The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.

11.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 11.

11.3 The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).

11.4 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

12. Provider’s confidentiality obligations

12.1 The Provider must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Customer Confidential Information; and

(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the Provider; or

(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.

12.5 The provisions of this Clause 12 shall continue in force for a period of 1 year following the termination of the Agreement, at the end of which period they will cease to have effect.

13. Data protection

13.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).

13.2 The Provider warrants to the Customer that:

(a) it will act only on instructions from the Customer in relation to the processing of Customer Personal Data;

(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Personal Data and against loss or corruption of Customer Personal Data;

(c) it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement;

(d) it will process the Customer Personal Data in compliance with all applicable laws; and

(e) it will not transfer or permit the transfer of Customer Personal Data to any place outside the EEA without the prior written consent of the Customer.

13.3 The Provider shall notify the Customer as soon as practicable if:

(a) any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;

(b) the Provider receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or

13.4 The Provider shall co-operate with the Customer in relation to:

(a) any request from the Customer to amend or delete any of the Customer Personal Data;

(b) any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and

at the cost and expense of the Customer.

13.5 The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under the Agreement; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.

13.6 The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel are informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider’s duties in respect of that Personal Data.

14. Warranties

14.1 The Provider warrants to the Customer that:

(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under these Terms and Conditions; and

(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

14.2 The Provider warrants to the Customer that:

(a) the Platform and Hosted Services will conform in all respects with the Hosted Services Specification;

(b) the Hosted Services will be free from Hosted Services Defects;

(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;

(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(e) the Platform will incorporate security features reflecting the requirements of good industry practice.

14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.

14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:

(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b) procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.

14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.

14.7 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

15. Acknowledgements and warranty limitations

15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

16. Indemnities

16.1 The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a “Provider Indemnity Event“).

16.2 The Customer must:

(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;

(b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;

(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and

(d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,

without prejudice to the Provider’s obligations under Clause 16.1 / and the Provider’s obligation to indemnify the Customer under Clause 16.1 shall not apply unless the Customer complies with the requirements of this Clause 16.2.

16.3 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a “Customer Indemnity Event“).

16.4 The Provider must:

(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

without prejudice to the Customer’s obligations under Clause 16.3/ and the Customer’s obligation to indemnify the Provider under Clause 16.3 shall not apply unless the Provider complies with the requirements of this Clause 16.4.

16.5 The indemnity protection set out in this Clause 16 shall be subject to the limitations and exclusions of liability set out in the Agreement.

17. Limitations and exclusions of liability

17.1 Nothing in the Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law.

17.2 The limitations and exclusions of liability set out in this Clause 17 and elsewhere in the Agreement:

(a) are subject to Clause 17.1; and

(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

17.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

17.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

17.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.

17.6 Neither party shall be liable to the other party in respect of any loss of use or production.

17.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

17.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 17.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 8.3 and Clause 8.4.

17.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

17.10 The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of:

(a) £1000; and

(b) the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events.

17.11 The aggregate liability of each party to the other party under the Agreement shall not exceed the greater of:

(a) £1000; and

(b) the total amount paid and payable by the Customer to the Provider under the Agreement.

18. Force Majeure Event

18.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

18.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

18.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

19. Termination

19.1 Either party may terminate the Agreement by giving to the other party not less than 60 days’ written notice of termination, expiring at the end of any calendar month, after the end of the Minimum Term.

19.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party commits any breach of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(b) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

19.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

19.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and

(b) the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.4.

20. Effects of termination

20.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 11.2, 11.4, 12, 16, 17, 20, 23, 24, 25, 26, 27.1, 27.2, 28, 29, and 30.

20.2 The termination of the Agreement shall not affect the accrued rights of either party.

20.3 Within 30 days following the termination of the Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

without prejudice to the parties’ other legal rights.

21. Notices

21.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in the Services Order Form and Clause 21.2):

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;

(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or

providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

21.2 The Provider’s contact details for notices under this Clause 22 are as follows: NEW TARGETS LTD, HADLEIGH BUSINESS CENTRE, 351-359 LONDON ROAD, ESSEX, SS7 2BT;

21.3 The addressee and contact details set out in the Services Order Form and Clause 21.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 21.

22. Subcontracting

22.1 The Provider may subcontract any of its obligations under the Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

22.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

22.3 Notwithstanding any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

23. Assignment

23.1 The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider’s contractual right and obligations under these Terms and Conditions without prior written consent to the customer.

23.2 The Customer must not assign, transfer or otherwise deal with the Customer’s contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

24. No waivers

24.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

24.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.

25. Severability

25.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

25.2 If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

26. Third party rights

26.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

26.2 The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.

27. Variation

27.1 The Agreement may not be varied except in accordance with Clause 27.

27.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.

27.3 The Provider may vary the Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 27.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider’s notice.

28. Entire agreement

28.1 The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

28.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

28.3 The provisions of this Clause 28 are subject to Clause 17.1.

29. Law and jurisdiction

29.1 The Agreement shall be governed by and construed in accordance with English law.

29.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.

30. Interpretation

30.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

30.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

30.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.