These Terms and Conditions are entered into by Customer as defined below and Project Provenance Ltd. (“Provenance”) (each a “Party”, and together, the “Parties”). The Customer agrees to access the Provenance Platform in accordance with these Terms and Conditions.
“Customer” means the entity set forth in a Commercial Agreement or online signup form to obtain access to the Provenance Platform, who through its authorised personnel, uses or otherwise accesses the Provenance Platform pursuant to the terms of this Agreement. If Customer does not agree with (or cannot comply) with all of the terms of the Agreement, Customer shall not access or use the Provenance Platform.
1. DEFINITIONS AND INTERPRETATION
- The following terms contained in the Agreement shall have the meanings set out below, unless the context otherwise requires:
"Affiliate" includes in relation to either Party each and any subsidiary or holding company of that Party and each and any subsidiary of a holding company of that Party;
"Agreement" means a Commercial Agreement and the Platform Terms & Conditions and any other order for services that the Parties agree shall be subject to these Platform Terms & Conditions (as varied from time to time in accordance with the Platform Terms & Conditions);
"Applicable Laws" means all applicable laws, statutes, regulation of any relevant jurisdiction where the Platform and Services are provided from, as amended and in force from time to time;
"Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised to use the Platform;
"Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
"Commercial Agreement" means the document entitled the "Commercial Agreement" and any other commercial terms schedules or service description that the Parties agree should be added to the Agreement at a later date from time to time;
"Confidential Information" means information in any form which is expressed to be confidential or which might reasonably be regarded as confidential in nature, not including information to the extent it: (a) was already lawfully known to the receiving Party at the time of the disclosure; (b) became lawfully known to the receiving Party independently; or (c) is in, or comes into, the public domain other than by wrongful use of or disclosure by the receiving Party;
"Control" has the meaning given to it in section 1124 of the Corporation Tax Act 2010, and the expression "change of Control" shall be construed accordingly;
"Customer Materials" means any of images, plans, data, materials or documentation that are supplied to Provenance by or on behalf of the Customer, or which Provenance is required to generate, process, store or transmit pursuant to the Agreement (including any data uploaded or processed in conjunction with use of the Platform);
"Data Protection Legislation" means the Data Protection Act 2018, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), the General Data Protection Regulation (Regulation 2016/679) ("GDPR") and any other data protection laws, regulations and guidelines that are applicable in the UK;
"Defect" means any non-conformity of the Platform with the product specification;
"Deliverable" means any specific output of the Services to be provided by Provenance or Provenance's Personnel to the Customer as specified in a Commercial Agreement and any other documents, products and materials provided by Provenance to the Customer in relation to the Services;
"Effective Date" means the date set out in the Commercial Agreement;
"Fees" means the Professional Services Fees, Platform Fees and any other additional fees (all as defined in the Commercial Agreement);
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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;
"Losses" means claims, demands, actions, awards, costs, expenses, damages and losses (including any interest, fines and reasonable legal and other professional costs and expenses);
"Platform Terms & Conditions" means these terms and conditions that the Parties agree shall apply to all Services provided by Provenance under the Agreement;
"Personal Data" shall the meaning given to it under Article 4(1) GDPR.
"Platform" means the software application known as "Provenance" developed, owned and maintained by Provenance (including any associated documentation provided by Provenance) and that is provided to the Customer remotely as a service via the internet;
"Provenance Personnel" means those officers, contractors, employees, consultants, agents, representatives and advisers of Provenance that are actually providing the Services;
"Services" means the Professional Services, Platform services and any other additional services (all as defined in the Commercial Agreement);
"Standard Support Hours" means the hours of 9:00 a.m. to 6:00 p.m. (UK Time) on Business Days or such other hours as may be agreed in writing from time to time between the Parties in relation to any Commercial Agreement;
"Virus" means anything or device (including any software, code, file or programme) which may: (a) 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; (b) 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 (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or device.
- Holding company and subsidiary have the meaning as defined in section 1159 of the Companies Act 2006
- A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Unless otherwise stated, time shall not be of the essence for the performance of any obligation by Provenance.
- Any phrase introduced by the terms including, include, in particular 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 e-mails.
2. ADDITIONAL SERVICES
- Where additional services are provided to the Customer or its Affiliates such additional services shall be provided in accordance with a Commercial Agreement agreed between the Parties from time to time.
- Once a Commercial Agreement has been agreed and signed by the Parties, it shall be deemed to be a part of the Agreement, it shall automatically incorporate the relevant terms and provisions of the Commercial Agreement and the Platform Terms & Conditions and shall not form a separate contract to the Agreement.
- The Parties agree that the Agreement shall be deemed to apply to any services provided prior to the Effective Date and, upon execution, the Agreement shall supersede any letters of intent or instructions to proceed issued in respect thereof, whether given orally or in writing.
- The Agreement shall continue in force for the Initial Term (as defined in the Commercial Agreement) (except as expressly provided otherwise).
- After the expiry of the Initial Term, the Agreement shall automatically continue until terminated by either Party on not less than 3 months' written notice (such notice to expire no earlier than the last day of the Initial Term).
4. LICENCE TERMS
- In consideration for the Platform Fees, Provenance hereby grants the Customer a non-exclusive, non-transferable (other than as provided for in the Agreement) licence for the duration of the Agreement for the Authorised Users to use the Platform and Deliverables, and to receive the Services subject to the terms of the Agreement.
- The Customer shall:
2. not sub-license the Platform or Deliverables;
3. not translate, adapt, vary or modify the Platform or Deliverables in any way without Provenance's prior written consent;
4. not allow Authorised Users to share access credentials or in any way permit access to the Platform or Deliverables, or receipt of the Services unless the Customer has notified Provenance of a reassignment of an Authorised Users account in its entirety to another individual, in which case the prior Authorised User shall no longer have any right to access to use the Platform or Deliverables, or to receive the Services;
5. permit Provenance to audit the Platform and Services in order to establish full details of any Authorised Users (or unauthorised users). For clarity, if such audits reveal that any unauthorised users have accessed the Platform, then without prejudice to Provenance's other rights, the Customer shall promptly disable such access and shall pay to Provenance an amount equal to any underpayment of fees set out at Provenance's then headline rates;
6. if requested by the Customer, permit Provenance to have full read and write access of an account to provide any assistance as may be required;
7. put into place and maintain reasonable security measures to safeguard the Platform and Deliverables from access or use by any unauthorised person(s) in accordance with generally accepted security practices;
8. be responsible for the input, transfer and maintenance of all Customer Data for use with the Platform (including by any third party within the Customer’s supply chain set out in the published experience);
9. not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform that:
1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. promotes unlawful violence;
5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
6. is otherwise illegal or causes damage or injury to any person or property;
7. Provenance reserves the right, without liability or prejudice to its other rights, to disable the Customer’s access to any material that breaches the provisions of this clause; and
10. not attempt to:
1. copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means;
2. de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
3. access all or any part of the Platform in order to build a product or service which competes with the Platform and Services.
- Provenance shall use reasonable endeavours to:
1. ensure that the Platform is always available, subject to any emergency or planned maintenance. For clarity, Provenance shall use reasonable endeavours to give as much notice to the Customer as is practicable in advance of any planned maintenance; and
2. correct any Defects with the Platform as part of its standard support and maintenance services. For clarity, Provenance shall not be liable to correct any Defect if the defect has arisen from a breach of the Agreement by the Customer (including use of the Platform with equipment, programs or services not authorised or approved in writing by Provenance).
3. provide the Services to the Customer with reasonable skill and care;
4. meet any performance dates specifically agreed;
- Provenance warrants that:
1. it shall comply with all Applicable Laws when performing its obligations under the Agreement;
2. (to the extent not listed as an obligation of the Customer), it shall maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement;
3. in performing its obligations under the Agreement, it will apply such time, attention, resources, trained personnel and skills as it deems necessary for the due and proper performance of the Services.
- The Customer acknowledges that Provenance continuously updates and develops the Services and its Platform. Customer may object to any changes only if the change has a materially detrimental impact on the Customer. Provenance shall use its reasonable endeavours to inform Customer of any changes to the Platform and/or the Services.
- Each Party warrants that it has the power and authority to enter into and perform the Agreement, which constitutes valid and binding obligations on it in accordance with its terms.
- Provenance 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. Provenance 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.
- The Platform uses blockchain. The Customer understands that anything stored using the Platform is public and permanently part of chain data.
- As a result, except as stated in the Agreement otherwise, Provenance excludes (to the fullest extent permitted by Applicable Law) all other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the Agreement, whether by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.
6. CUSTOMER'S OBLIGATIONS
- The Customer shall:
1. co-operate with Provenance and Provenance's Personnel in all matters relating to the Agreement;
2. provide Provenance with all documents, information, items and materials in any form (whether owned by the Customer or a third party) required by Provenance to perform the Services in a timely manner, and ensure that these are accurate and complete;
3. ensure any Commercial Agreement meets its requirements;
4. obtain and maintain all necessary licences and consents as required to enable Provenance to perform its obligations under a Commercial Agreement;
5. comply with all Applicable Laws;
6. ensure that all Authorised Users use the Platform in accordance with the terms and conditions of the Agreement and any other instructions reasonably given by Provenance;
7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Provenance'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; and
8. not, without the prior written consent of Provenance, at any time from the Effective Date to the expiry of 6 months after termination or expiry of the Agreement, attempt to solicit or entice away from Provenance any Provenance Personnel except where such Provenance Personnel have responded to a general advertising campaign for the relevant role.
- The Customer warrants that Provenance's use of the Customer Materials does not infringe the Intellectual Property Rights of any third party.
- Without prejudice to any other right or remedy Provenance may have, if Provenance's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (including a failure to comply with any of its obligations under Clause 6.1 or a Commercial Agreement) (a "Customer Default") then:
1. Provenance and Provenance's Personnel shall use reasonable endeavours to mitigate the impact of the Customer Default;
2. Provenance shall not be responsible for any failure to carry out the relevant obligations and shall be allowed an extension of time to perform its obligations; and
3. the Customer shall reimburse Provenance for all reasonable additional amounts incurred by Provenance as a result of the Customer Default.
- Provenance shall have the right to use the Customer's name and logos on its website and in connection with its marketing campaigns and PR activities, provided that any press releases that Provenance issues shall be mutually approved by the Parties. All mass communication by the Customer around its activation using Provenance shall be mutually approved by the Parties.
7. FEES AND PAYMENT TERMS
- The Customer shall pay Provenance the Fees in respect of the Platform and delivery of Services.
- Provenance shall invoice the Customer for the Fees upon signature of a Commercial Agreement, in accordance with the terms as set out in the Commercial Agreement.
- The Customer shall pay each invoice submitted by Provenance in full:
1. within fourteen (14) days of the date of the invoice; and
2. in cleared funds via bank transfer to a bank account nominated in writing by Provenance.
- All amounts payable by the Customer under the Agreement are exclusive of value added tax, or any locally applicable equivalent sales tax or levies payable as a result of providing the Platform and Services ("VAT"). The Customer shall pay any such VAT arising on receipt of a valid invoice from Provenance as and when due.
- If either Party disputes its obligation to pay any sum due under the Agreement, that Party shall promptly notify the other Party of such dispute and may withhold payment of such disputed sum until such dispute is resolved. In the event that such dispute is not resolved within 45 days of the sums becoming due for payment, the Parties shall revert to the dispute resolution procedure set out in Clause 15.
- If a Party fails to make any payment due under the Agreement by the due date for payment, then interest on the overdue amount shall accrue on a daily basis from the due date until the payment date (whether before or after judgment) at the rate of three per cent (3%) per day above the Bank of England's base rate. Where the late paying Party is the Customer, then, without prejudice to Provenance's other rights or remedies, Provenance may suspend all or part of the Platform and Services until payment has been made in full.
- The Customer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Provenance may at any time, without limiting its other rights or remedies, set off, deduct or withhold from any liability owed to the Customer under or in connection with the Agreement (whether present, future, actual or contingent, liquidated or unliquidated, disputed or undisputed).
8. INTELLECTUAL PROPERTY RIGHTS
- Nothing in the Agreement shall provide the Customer with any right, title or interest in or to the Intellectual Property Rights of Provenance or its licensors unless stated otherwise.
- The Customer acknowledges and agrees that all Intellectual Property Rights in the Platform or that are created pursuant to the Services or contained with any Deliverables shall be owned by Provenance (or its licensors). To the extent any Intellectual Property Rights in the Deliverables has passed to the Customer, the Customer hereby assigns absolutely to Provenance (including by way of an assignment of future Intellectual Property Rights) all Intellectual Property Rights in the Deliverables to Provenance (and unconditionally and irrevocably waives all moral rights that exist or may exist in the Deliverables). To the extent Provenance deems it necessary, the Customer shall execute any documents required by Provenance to perfect such assignment.
- Ownership of the Customer Materials shall be vested in, and remain the property of, the Customer or its licensors.
- Notwithstanding Clause 8.3, the Customer grants Provenance a perpetual, royalty-free, worldwide, non-exclusive licence to use the Customer Materials to provide the Platform and Services to the Customer.
- The Customer shall indemnify Provenance from and against all Losses incurred by Provenance or Provenance's Personnel arising out of or in connection with any claim, demand or action alleging that Provenance's use of the Customer Materials has infringed the Intellectual Property Rights of a third party provided that the claim has not arisen from Provenance's or Provenance's Personnel's breach of the Agreement.
- Provenance shall indemnify the Customer from and against all Losses incurred by the Customer arising out of or in connection with any claim, demand or action alleging that the Platform, Deliverables or the Services has infringed the Intellectual Property Rights of a third party provided that:
1. the claim has not arisen from:
1. the Customer's or its personnel's breach of the Agreement (including misuse or unauthorised modification of the Platform or Deliverables);
2. the combination of the Platform or Deliverables with other materials or products not provided by Provenance (including the Customer Materials); or
3. Provenance's compliance with specifications provided by or instructions of the Customer;
2. the Customer promptly notifying Provenance of the claim;
3. Provenance having the sole conduct of all negotiations and litigation and settlement arising from the claim;
4. the Customer providing Provenance with all information and assistance reasonably required by Provenance; and
5. the Customer making no admission in respect of the claim.
- The indemnities in Clauses 8.5 and 8.6 shall not apply to any claims that are brought more than one year after the circumstances giving rise to the claim have come, or should reasonably come, to the attention of the indemnified Party.
- The Customer understands and agrees the Platform, Deliverables and Services may be provided to the Customer subject to the relevant terms and conditions of third party providers (including third party end-user licensing agreements and service support agreements) ("Third Party Terms") and that in such instances, the Customer's use, enjoyment and receipt of such Platform, Deliverables and Services will be governed by the Third Party Terms provided Provenance has used reasonable endeavours to bring such Third Party Terms to the Customer's attention in advance. The Customer is required to comply with and agree to such Third Party Terms prior to receipt of and use of the relevant Platform, Deliverables and Services.
9. DATA PROTECTION AND DATA LICENCE
- In this Clause 9 the following definitions shall apply:
1. "Authorised User Restrictions" means that the Customer shall: (a) only make copies of the Usage Data to the extent reasonably necessarfor the following purposes: back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing; (b) not extract, reutilise, use, exploit, redistribute, re-disseminate, copy or store the Usage Data or any materials connected to such Usage Data for any purpose not expressly permitted by this Agreement; and (c) not do anything which may damage the reputation of Provenance, the Usage Data or the services.
2. "Customer Data" means the data inputted by the Customer or the Authorised Users, or Provenance on the Customer's behalf for the purposof using the Platform or facilitating the Customer’s use of the Platform or the data otherwise provided by the Customer to Provenance through the use of the Platform.
3. "Derived Data" means any Usage Data (wholly or in part) Manipulated to such a degree that it: cannot be identified as originating oderiving directly from the Usage Data or the Services and cannot be reverse-engineered such that it can be so identified; and is not capable of use substantially as a substitute for the Usage Data or the Services
4. "Manipulate" means to combine or aggregate the Usage Data (wholly or in part) with other data or information or to adapt the Usage Dat(wholly or in part)
5. "Usage Data" means anonymised, aggregated data collected by Provenance in the course of providing the Platform and Services to thCustomer but excluding Customer Data.
- Each Party shall comply with the requirements of the Data Protection Legislation in respect of the activities that are the subject of the Agreement and shall not knowingly do anything or permit anything to be done which might lead to a breach by the other Party of the Data Protection Legislation.
- If Personal Data is passed between the parties during this Agreement each Party shall take all necessary steps to ensure that it operates in accordance with applicable Data Protection Legislation.
- Provenance owns the Usage Data and Customer owns Customer Data. The Customer agrees that Provenance shall have the right to combine the Usage Data with similar data received from third parties and to create combined data products.
- As part of the Services, Provenance has agreed to, and hereby grants, a non-exclusive, non-transferable, revocable license to the Customer to: (a) use and Manipulate the Usage Data; and (b) create Derived Data during the term, subject to the Authorised User Restrictions solely to (a) access, review and store the Usage Data on the Customer system (meaning any information technology system or systems owned or operated by the Customer from which Usage Data is received in accordance with this agreement); and (b) distribute the Usage Data to Authorised Users.
- The Customer assigns to Provenance, and shall assign to it with full title guarantee, all intellectual property rights in any Manipulated Data it may create, by way of future assignment and the intellectual property rights assigned to Provenance under this clause shall be deemed to be included in the licence granted under Clause 9.5 from the date when such rights arise. The Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, at Provenance's cost, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
- The Provenance registered trademark logo must appear on all activations that use Provenance. Embeds will include either the Provenance® mark, Powered by Provenance® strapline or Provenance logo. The Customer shall co-operate with Provenance to protect the goodwill and reputation of the services.
- Any display of the services by the Customer shall credit, wherever technically and commercially feasible, Provenance, any licensor of Provenance or any other source of the Usage Data specified by Provenance as the source of the Usage Data. The Customer acknowledges that reference in any element of materials (provided to Customer by Provenance) to trade names or proprietary products where no specific acknowledgement of such names or products is made does not imply that such names or products may be regarded by the Customer as free for general use, outside the scope of the use of the materials authorised by this agreement.
- The Customer shall not breach the Authorised User Restrictions and except as expressly provided in this Agreement or for internal business purposes, the Customer shall not: (a) use the Usage Data (wholly or in part) in its products or services; or (b) redistribute the Usage Data (wholly or in part).
- Provenance shall not be responsible for any loss, destruction, alteration or disclosure of Usage Data caused by any third party (except any third parties sub-contracted by Provenance to perform services related to Usage Data maintenance and back-up).
- Each Party undertakes that it shall not at any time during the term of the Agreement, and for a period of five years after termination of the Agreement, disclose the other Party's Confidential Information, except as permitted by Clause 10.2.
- Each Party may disclose the other Party's confidential information:
1. to its Affiliates, employees, officers, representatives, consultants or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with the Agreement provided that the disclosing Party has ensured that its Affiliates, employees, officers, representatives, consultants or advisers to whom it discloses the other Party's Confidential Information complies with this Clause 10; and
2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing Party notifies the other Party as far in advance as reasonably possible (unless prevented from doing so by Applicable Law).
- Neither Party shall use the other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
- Without affecting any other right or remedy available to it and notwithstanding a Party's right to terminate pursuant to Clauses 3.2 and 16.4, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
1. the other Party commits a material breach of any term of the Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
2. the other Party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
3. the other Party suspends payment to its creditors or generally is unable to pay its debts as and when they fall due or suffers the making of an administrative order or has a receiver (including an administrative receiver) or manager appointed of the whole or any part of its assets or if any order is made or a resolution passed for its winding up (except for the purpose of amalgamation or reconstruction) or if it enters into any composition or arrangement with its creditors or calls a meeting of its creditors with intent to enter into such an arrangement or composition or if it ceases, or threatens to suspend or cease, carrying on all or a substantial part of its to carry on business; or
4. any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 11.1.3.
- Without affecting any other right or remedy available to it, Provenance may terminate the Agreement (including any or all of the Commercial Agreements) with immediate effect by giving written notice to the Customer if:
1. the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
2. there is a change of Control of the Customer that in Provenance's reasonable opinion is likely to cause Provenance reputational harm or damage.
- Where Provenance has the right to terminate the Agreement it may instead decide to partially terminate the Agreement so that certain Services or Commercial Agreements either are terminated or remain in force.
12. CONSEQUENCES OF TERMINATION
- Except as provided otherwise, on termination or expiry of the Agreement for any reason:
1. all existing Commercial Agreements shall terminate automatically; and
2. the Customer shall immediately pay to Provenance all of Provenance's outstanding unpaid invoices and interest and, in respect of any Deliverables and Services supplied but for which no invoice has been submitted, Provenance may submit an invoice, which shall be payable by the Customer immediately on receipt.
- Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
- Should the Customer require any reasonable support or assistance after the Agreement terminates then such support and assistance shall be provided by Provenance and chargeable on a time and materials basis, provided that Provenance shall not be obliged to provide to such support and assistance if any amounts are owed to Provenance on termination.
13. LIMITATION OF LIABILITY
- Nothing in the Agreement shall limit or exclude a Party's liability for:
1. death or personal injury caused by its negligence;
2. fraud or fraudulent misrepresentation;
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
4. payment of any Fees due under the Agreement; or
5. any other liability which cannot be limited or excluded by Applicable Law.
- Subject to Clause 13.1, Provenance shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement (including any Commercial Agreement) for:
1. loss of profits or revenue;
2. loss of sales or business;
3. loss of agreements or contracts;
4. loss of anticipated savings;
5. loss of or damage to goodwill;
6. loss of use, corruption or recovery of software, data or information;
7. any costs of substitute goods, services or deliverables; and
8. any indirect or consequential loss.
- Subject to Clause 13.1, Provenance's total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement in any 12 month period shall be limited to 100% of the Fees actually received by Provenance in the 12 months preceding the relevant breach.
14. CHANGE CONTROL
- Either Party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until an agreed change order has been signed by both Parties (a "Change Order"). A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
1. the provision of the Platform and Services (as the case may be);
2. the Fees;
3. additional services to be included on the Platform;
4. any agreed timetable for delivery; and
5. any of the other terms of the relevant Commercial Agreement.
- If the Parties:
1. agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Commercial Agreement; or
2. are unable to agree a Change Order, either Party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in Clause 15.
3. The Parties shall act reasonably and promptly when considering any change to a Commercial Agreement that is required as a result of a change in Applicable Law and, notwithstanding Clause 7.5, Provenance shall be free to adjust the Fees to reflect any reasonable and demonstrable increase in its own costs resulting from the change in Applicable Law.
15. MULTI-TIERED DISPUTE RESOLUTION PROCEDURE
- Any dispute which may arise between the Parties concerning this Agreement shall be determined as follows:
1. the dispute shall first be referred to the Project Manager (or primary contact person if no named Project Manager) of either Party set out in the Commercial Agreement who shall negotiate in good faith in an attempt to resolve the dispute as speedily as possible. If those negotiations do not result in a settlement of the dispute within 14 days of their commencement then the provisions of Clause 15.1.2 or 15.1.3 below (as appropriate) shall apply;
2. the Parties shall attempt to determine the dispute by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure; and
3. if the Parties cannot resolve the dispute by mediation within 60 calendar days of the date of the first mediation meeting, then either Party may apply to the Courts of England and Wales who shall have exclusive jurisdiction to hear and determine any such unresolved dispute.
- Nothing in Clause 15 shall prevent either Party from applying to the Courts of England and Wales for injunctive or other interim relief at any time.
16. FORCE MAJEURE
- "Force Majeure Event" means any circumstance not within a Party's reasonable control including:
1. acts of God, flood, drought, earthquake or other natural disaster;
2. epidemic or pandemic;
3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
4. failure of IT or telecommunication systems or software (including a failure of the IT or telecommunication systems or software of a third party);
5. nuclear, chemical or biological contamination or sonic boom;
6. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
7. collapse of buildings, fire, explosion or accident;
8. any labour or trade dispute, strikes, industrial action or lockouts; and
9. interruption or failure of utility service.
- Provided it has complied with Clause 16.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event ("Affected Party"), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
- The Affected Party shall:
1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
- If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 45 calendar days, the Party not affected by the Force Majeure Event may terminate the Agreement by giving the Affected Party written notice.
17. ASSIGNMENT AND OTHER DEALINGS
- The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
- Provenance may at any time:
1. assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Agreement;
2. sub-contract any of its obligations under the Agreement provided that Provenance shall remain responsible for the acts and omissions of any such sub-contractor as if they were acts or omissions of Provenance.
- Subject to Clause 14, no variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives) provided that Provenance shall be free to make non-material changes to the Platform Terms & Conditions by providing the Customer with reasonable notice of the relevant change.
- A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
- A failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- A Party that waives a right or remedy provided under the Agreement or by law in relation to one Party, or takes or fails to take any action against that Party, does not affect its rights in relation to any other Party.
20. RIGHTS AND REMEDIES
- The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of the 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 the Agreement.
- If one Party gives notice to the other of the possibility that any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. ENTIRE AGREEMENT
- The 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.
- The Parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those that are expressly stated in the Agreement.
- Neither Party shall have any remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement, unless the statement was made fraudulently.
- The Agreement shall apply to the exclusion of, and shall prevail over, any terms and conditions contained in or referred to in any documentation submitted by the Customer, or in any correspondence or elsewhere or implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by a director or other authorised representative of both Parties.
- If there is any conflict or inconsistency between any of the provisions of the Commercial Agreement and the Platform Terms & Conditions entered into by the Parties, then the conflict or inconsistency shall be resolved by giving the documents the following order of precedence (with the earlier mentioned documents taking priority):
1. any Special Conditions in the Commercial Agreement;
2. the Platform Terms & Conditions (excluding the Schedules);
3. the Schedules to the Platform Terms & Conditions; and
4. the Commercial Agreement.
24. NO PARTNERSHIP OR AGENCY
- Nothing in the Agreement is intended to, nor shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
- Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
25. THIRD PARTY RIGHTS
- The Parties do not intend that any other Party other than a Party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
- Any notice given to a Party under or in connection with the Agreement shall be in writing and shall be sent by email to the address specified in the Commercial Agreement.
- Any notice shall be deemed to have been received at 9.00am on the next Business Day after transmission.
- This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
28. GOVERNING LAW
- The 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.
- Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.