1 Definitions and Interpretation
1.1 Unless the context requires otherwise, the following words and expressions shall have the following meanings:
Additional Features: has the meaning set out in Clause 5.3;
Additional Services: any bespoke configuration services, software development services, consultancy services and/or any other services provided by CCD (or another CCD Group Company) from time to time, the provision of which is intended by CCD (or the relevant CCD Group Company) to be subject to an Additional Services Contract;
Additional Services Contract: has the meaning set out in Clause 6.2;
Annual Subscription: a Subscription where the Customer pays the Subscription Charges in respect of each Contract Year (or part thereof) annually in advance;
Authorised Users: the employees and officers of the Customer who are authorised by the Customer to use the C3 Solution;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in the City of London are open for business;
C3 Solution: the solution provided by CCD comprising of the Software and the Hosting Services;
CCD: Customs Connect Digital Solutions Limited registered with Company Number: 11296330;
CCD Group Company: CCD and/or it’s holding company or subsidiaries from time to time and any subsidiary from time to time of Customs Connect Group Limited (CN: 9917825) and/or any other company within the same group of companies (as appropriate);
Charges: all and any fees and charges payable by the Customer to CCD under or in connection with the Contract including Subscription Charges (but excluding, for the avoidance of doubt, any fees or charges payable under or in connection with any Additional Services);
Commencement Date: shall have the meaning given to the term in Clause 2.2;
Conditions: these terms and conditions as amended from time to time in accordance with Clause 20.2;
Confidential Information: any and all information of whatever nature disclosed directly or indirectly (whether before or after the Commencement Date and whether given in writing, verbally or by any other means) by a Party to the other Party, including any information relating to its business affairs, customers, suppliers, products and services (including the C3 Solution and other software products or services), technical information and data, financial information, marketing information, analyses, documents, data (including MSS Data), formulae, processes, designs, know-how, source code, object code, trade secrets and Intellectual Property Rights which information is designated in writing to be confidential or proprietary, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary;
Contract: the contract for the supply by CCD to the Customer of the C3 Solution comprising of these Conditions and (if and when submitted) the Customer’s Order, which shall come into existence in accordance with Clause 4.1;
Contract Year: (a) in respect of the 1st Contract Year, the period commencing on the Commencement Date and ending on the first anniversary of the Premium Version Start Date; and (b) in respect of any other Contract Year, a period of 12 months commencing on a given anniversary of the Premium Version Start Date, or such shorter period that commences on an anniversary of the Premium Version Start Date and ends on the date of termination of the Contract;
Contractor: a person to whom CCD subcontracts any of its obligations under the Contract from time to time;
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and Change of Control shall be construed accordingly;
Customer: the person who signs up for a user account in accordance with Clause 2.2 and is (if and when submitted) named in the Order Form;
Customer’s Order: the Customer’s order for the Premium Version submitted via the Order Form;
Customer Data: any Data belonging to and inputted by the Customer and/or its Authorised Users, or CCD on the Customer’s behalf, into the C3 Solution (including the MSS Data);
Customer Personal Data: any Customer Data which is Personal Data;
Data: data of any form, nature or structure, that can be created, uploaded, inserted into or derived from or with the Software;
Data Protection Legislation: unless and until the GDPR is no longer directly applicable in the UK, the GDPR together with and as amended and updated by the Data Protection Act 2018 and any other regulations and secondary legislation relating to data protection in England and Wales;
Force Majeure Event: any acts, events, omissions or accidents beyond the reasonable control of a Party;
Free Version: a restricted, limited feature version of the C3 Solution which may be accessed and used by the Customer and/or Authorised Users in accordance with Clause 3;
Free Version Period: has the meaning given to it in Clause 3.1;
GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation);
Holding Company and Subsidiary: a holding company and subsidiary as each are defined in Section 1159 of the Companies Act 2006;
Hosting Provider: UKFast.Net Limited (CN: 03845616) or such other provider of the Hosting Services as CCD may appoint from time to time;
Hosting Provider Terms: the terms and conditions of the Hosting Provider for the provision of Hosting Services, as may be updated from time to time, the current version of which can be found at https://www.ukfast.co.uk/terms/terms-and-conditions.html;
Hosting Services: the hosting services to be procured by CCD from time to time for the hosting of the Software and the Customer Data, being as at the Commencement Date, those hosting services provided by the Hosting Provider under the Hosting Provider Terms;
Insolvency Event: one or more of the following events: (a) any distress, execution or other process levied upon any of the assets of the Customer; (b) where the Customer suspends, or threatens to suspend, payment of its debts or is, or is deemed, unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; (c) where the Customer convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or any court proceedings once commenced, notice given or petition passed for any of the foregoing; or (d) an event similar or analogous to (a) to (c) above in England and Wales or in any other jurisdiction;
Intellectual Property Infringement: has the meaning set out in Clause 11.2;
Intellectual Property Rights: any and all copyrights, moral rights, related rights, patents, supplemental protection certificates, rights in software, trade marks, trade names, service marks, design rights, database rights, website rights, domain name rights, rights in undisclosed information or Confidential Information, rights in get up, goodwill or to sue for passing off, unfair completion rights, and other intellectual property rights (whether registered or not) and applications for any such rights as may exist anywhere in the world;
Law: all applicable statutory and other laws, rules, regulations, instruments, orders and/or provisions in force from time to time (including the Data Protection Legislation) to which a Party is subject from time to time;
MSS Data: the Customer’s management support system data relating to imports and exports (in the form prescribed by HMRC) which may be uploaded to the C3 Solution;
New Release: a new release, upgrade or version of the Software that CCD generally releases to its customers;
Order Form: CCD’s standard order form from time to time containing details of the Customer’s order for the Premium Version which can be accessed and submitted through the Subscription Preferences (or as otherwise determined by CCD);
Party: a party to the Contract and Parties shall be construed accordingly;
Permitted Use: the use by Authorised Users of the C3 Solution for the purpose of the Customer’s internal business operations only;
Premium Version: a premium version of the C3 Solution which has the enhanced features beyond the Free Version, set out in Customer’s Order and/or the Subscription Preferences, which the Customer must obtain a Subscription for in order to use;
Premium Version Start Date: the date on which CCD accepts the Customer’s Order;
Software: the C3 online software applications as more particularly detailed in the Schedule;
Specification: the functionality and performance specifications for the Software as set out in the Schedule;
Subscription: a subscription for the Premium Version which comes into effect in accordance with Clause 4;
Subscription Charges: the charges payable for the Subscription(s) as set out in the Order Form and/or the Subscription Preferences (as appropriate) as may be varied by the Customer amending the Subscription Preferences;
Subscription Period: the period during which a Subscription is in force (being the period commencing on the Premium Version Start Date and ending on expiry or termination of the relevant Subscription);
Subscription Preferences: the subscription preferences in the customer account settings area of the Software;
Supplier Staff: any employees or officers of any CCD Group Company that are involved in the performance and/or delivery of the C3 Solution;
Term: the term of the Contract, being the period starting on the Commencement Date and ending on termination of the Contract; and
VAT: value added tax chargeable under the Value Added Tax Act 1994 or any other equivalent applicable sales tax in force from time to time. 1.2 The Schedule forms part of and is incorporated into these Conditions. References to Clauses and the Schedule are to clauses of, and the schedule to, these Conditions.
1.3 If there is any inconsistency between these Conditions, the Schedule, the Order Form and the Hosting Provider Terms (or the terms and conditions of any other Contractor which apply to the Customer in accordance with the Contract), the following order of precedence shall apply:
1.3.1 the Hosting Provider Terms (or the terms and conditions of any other Contractor which apply to the Customer in accordance with the Contract);
1.3.2 the Order Form and/or the Subscription Preferences;
1.3.3 these Conditions; and
1.3.4 the Schedule.
1.4 A reference in these Conditions to:
1.4.1 a person shall include an individual, company, limited liability partnership, corporate firm, partnership, joint venture, association, trusts or unincorporated bodies and associations (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns;
1.4.2 the singular shall include the plural and vice versa;
1.4.3 writing or written excludes fax, but includes e-mail;
1.4.4 include, including and in particular or anything similar are illustrative only and none of them shall limit the sense of the words preceding or following them and each of them shall be deemed to incorporate the expression without limitation;
1.4.5 a statute or statutory provision is reference to it as amended, extended or re-enacted from time to time and such statute or statutory provision shall include any subordinate legalisation made from time to time under that statutory provision.
2 Basis of Contract
2.1 These Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract shall come into existence at such time as the Customer signs up for and creates a user account for the C3 Solution and agrees to these Conditions (whether electronically or otherwise) and CCD has approved of the registration of the account (the Commencement Date).
2.3 The Customer warrants and represents that:
2.3.1 it has all requisite power and authority to enter into and perform the Contract; and
2.3.2 it has entered into the Contract (and shall only submit the Customer’s Order and/or update its Subscription Preferences) acting by a duly authorised representative who is authorised to bind the Customer to the terms of the Contract.
3 Free Version
3.1 The provisions of this Clause 3 shall apply during the period:
3.1.1 after the Customer signs up for a user account and accepts these Conditions in accordance with Clause 2.2 and until such time as the Customer submits the Customer’s Order (which is approved by CCD); or
3.1.2 following the expiry of a Subscription but prior to the submission of any further Customer’s Order (which is approved by CCD), (each such period being a Free Version Period).
3.2 The Customer may during the Free Version Period use the Free Version free of charge in accordance with the terms of this Clause 3.
3.3 Subject to the Customer complying with the restrictions and provisions set out in these Conditions CCD shall, from the Commencement Date (or, where applicable, following expiry of a Subscription):
3.3.1 grant to the Customer a non-exclusive, non-transferable licence solely for the Authorised Users (from time to time) to access and use the Free Version (including the results generated by the Software) for the Permitted Use;
3.3.2 provide or procure the provision of the Hosting Services in accordance with Clause 5; and
3.3.3 not charge the Customer the Subscription Charges that would otherwise be due and payable for the use of the Premium Version for the duration of the Free Version Period (provided that, for the avoidance of doubt, any charges for Additional Services or any Charges which the Customer may agree to pay for other features or functionality shall, to the extent applicable, remain payable during the Free Version Period), during the Free Version Period and in each case, in accordance with and as required by these Conditions.
3.4 CCD may bring the Free Version Period to an end at any time by giving notice in writing to the Customer and upon termination or expiry of the Free Version Period, the Contract shall be terminated and the provisions of Clause 14.5 shall apply as if set out in this Clause in full (mutatis mutandis).
3.5 Subject to Clause 3.3.3, all other provisions of these Conditions shall apply (as applicable) in full force during the Free Version Period.
4 Subscriptions and the Premium Version
4.1 The Customer’s Order constitutes an offer by the Customer to purchase the Premium Version on the terms of the Order Form and these Conditions (which shall continue to apply following submission of the Customer’s Order). The Customer is responsible for ensuring that the terms of the Customer’s Order are complete and accurate.
4.2 The Customer’s Order shall be deemed to be accepted once CCD has accepted the submission of the same, at which point the Customer’s Order shall be deemed to be incorporated into the Contract.
4.3 Upon approval of the Customer’s Order and subject to the Customer paying the Charges in accordance with Clause 8 and complying with the restrictions and provisions set out in these Conditions, CCD shall, from the Premium Version Start Date:
4.3.1 grant to the Customer a non-exclusive, non-transferable licence for the Authorised Users (from time to time) to access and use the Premium Version (including the results generated by the Software) solely for the Permitted Use; and
4.3.2 provide or procure the provision of the Hosting Services in accordance with Clause 5, during the Subscription Period and in each case, in accordance with and as required by these Conditions.
4.4 The Customer may, during the Term, vary its Subscription or add Additional Features (which may incur additional Charges and/or revised Subscription Charges) by accessing the Subscription Preferences and altering the settings accordingly or by otherwise using any method determined by CCD from time to time. If the Customer submits a variation of its Subscription during the Subscription Period, such variation shall be deemed to be incorporated into the Contract upon submission of the same (where the variation takes effect automatically) or upon acceptance of the variation request by CCD (where the variation takes effect after approval by CCD).
5 Updates and New Releases
5.1 CCD may from time to time update the C3 Solution which corrects faults, adds functionality or otherwise amends and/or upgrades the Software (but which does not constitute a New Release or Additional Features) which shall be take effect automatically and shall not require positive action from the Customer.
5.2 If CCD makes a New Release available, it shall notify the Customer of the date on which such New Release shall be implemented. Acceptance of the New Release may be (at CCD’s discretion) subject to the Customer’s acceptance of further terms and conditions and/or payment of additional Charges.
5.3 CCD may (at its discretion) develop and introduce certain other enhancements, widgets, functionality or features to the Software (Additional Features) and make these available to the Customer on such terms as CCD may determine and the Customer may submit an order for such Additional Features in accordance with Clause 4.4.
6 Additional Services
6.1 The Customer may from time to time request CCD (or the relevant CCD Group Member) to provide Additional Services and CCD (or the relevant CCD Group Member) may, at its absolute discretion, accept or refuse such request.
6.2 The provision of any Additional Services shall be subject to the Customer agreeing to the proposed or estimated fees and expenses of CCD (or the relevant CCD Group Company) and the Parties entering into a separate contract on the standard terms of CCD (or the relevant CCD Group Company’s standard terms and conditions from time to time) (an Additional Services Contract).
7.1 CCD shall provide or procure the provision of the Hosting Services to the Customer during the Term.
7.2 The Hosting Services shall be provided to the Customer by the Hosting Provider on the Hosting Provider Terms which shall apply as between CCD and the Customer mutatis mutandis (including to any variation made by the Hosting Provider from time to time).
7.3 In relation to any failure of the Software to perform substantially in accordance with its Specification for whatever reason or a failure of the C3 Solution which arises due to any problem relating to the Hosting Services, the Customer’s remedy shall be limited to CCD taking reasonable steps in accordance with the Hosting Provider Terms to require the Hosting Provider to restore the Hosting Service.
8 Charges and Payment Terms
8.1 The Customer shall pay the Subscription Charges which may be paid annually in advance (in respect of Annual Subscriptions) or monthly in advance or as otherwise stated in the Order Form or Subscription Preferences (as appropriate) for other types of Subscriptions. Payment of the Subscription Charges shall be made by direct debit or other automated payment (on the dates as specified by CCD or as set out in the Customer’s Order or Subscription Preferences) or, if agreed in writing in advance by CCD, upon receipt of an invoice by the Customer from CCD. The Customer shall pay all other Charges in accordance with the terms of the relevant order or as set out in the Subscription Preferences or invoice terms.
8.2 The Customer shall pay all Charges in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). CCD may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by CCD to the Customer.
8.3 If CCD has not received payment by the due date or the date, and without prejudice to any other rights and remedies of CCD interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 All Charges are expressed exclusive of value added tax (or other relevant sales tax), which shall be added to payments of the Charges at the appropriate rate.
8.5 CCD may, by serving written notice on the Customer, increase any Charges under the Contract to reflect any increases in the cost to CCD in providing the C3 Solution which are beyond CCD’s reasonable control (including any increases in the fees charged by any third party suppliers for any services connected to the C3 Solution, any increase in the fees charged by Hosting Provider or other Contractors, foreign exchange fluctuations, increases in tax and duties and increases in other costs associated with the provision of the C3 Solution). Upon written notice being served, increase in the Charges shall be deemed to be agreed and accepted incorporated into the Contract.
8.6 Notwithstanding Clause 8.5, CCD may otherwise increase any Charges under the Contract during the Term by giving not less than one months’ written notice of such increase to the Customer. If the Customer has an Annual Subscription, such increase in any Charges shall only become effective at the end of the present Annual Subscription.
9 Customer’s obligations
9.1 The Customer shall:
9.1.1 co-operate with CCD on all matters relating to the Contract and the provision of the C3 Solution;
9.1.2 only upload the Customer Data to the Software which the Software is able to support and not Data belonging to any other third party (provided that the Customer may upload Data belonging to its holding company or subsidiaries and any subsidiary of such holding company (from time to time));
9.1.3 provide CCD with full access to all information as may be required by CCD in order to provide the C3 Solution and otherwise exercise its rights or fulfil its obligations under the Contract, including the Customer Data;
9.1.4 maintain the Customer’s Environment in order to ensure the security of and efficient use of the C3 Solution by the Customer and Authorised Users;
9.1.5 maintain, and procure that its Authorised Users maintain, the confidentiality of all passwords issued and/or used for the purpose of the C3 Solution;
9.1.6 prevent any unauthorised access to, or use of, the C3 Solution (and notify CCD promptly of any such unauthorised access or use upon becoming aware of the same); and
9.1.7 ensure that the Authorised Users use the C3 Solution in accordance with the Contract.
9.2 The Customer shall not access, store, distribute, transmit, upload or allow to be uploaded to the C3 Solution any material (including Customer Data) which:
9.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or which is otherwise illegal or which may cause harm to any person or property; and/or
9.2.2 (if applicable) violates the Hosting Provider Terms (or any other Contractor’s terms from time to time); and/or
9.2.3 contains any viruses (including any device, software, code, file or programme which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network or network or any other service or device) or its not supported by the Software.
9.3 The Customer shall not at any time:
9.3.1 (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 the Contract), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the C3 Solution in any form or media or by any means or to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the C3 Solution; or
9.3.2 access, copy or infringe all or any part of the C3 Solution in order to build a product or service which competes with the same; or
9.3.3 license, sell, rent, lease, transfer, assign or otherwise distribute the C3 Solution or otherwise exploit the C3 Solution other than for the Permitted Use.
9.4 The Customer shall indemnify and keep CCD fully indemnified and hold CCD harmless against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any breach by the Customer or its Authorised Users of this Clause 9.
9.5 Any obligation or restriction on the Customer under the Contract shall, to the extent it also relates to the Authorised Users, be deemed to be an obligation on the Customer to procure that the Authorised Users shall also undertake such obligation or comply with such restriction (as appropriate). The Customer shall be responsible for the Authorised User’s use of the C3 Solution and shall be liable for the acts and omissions of the Authorised Users and for any breach by any Authorised User of any provision of these Conditions.
10 Customer data
10.1 Both Parties shall, during the Term, comply with their respective obligations under the Data Protection Legislation.
10.2 The Customer shall have sole responsibility for and hereby warrants the legality, reliability, integrity, accuracy and quality of the Customer Data.
10.3 The Customer acknowledges that the C3 Solution is not intended to be a Data storage facility and the Customer agrees that it shall keep its own copies of any Customer Data which it uploads to the C3 Solution. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for CCD to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by CCD, the Hosting Provider or any other relevant Contractor from time to time (as appropriate).
10.4 The Customer agrees that CCD and other CCD Group Members (and their officers, employees, contactors and agents) may access the Customer’s MSS Data and use the same in order to review and analyse such Data in such manner as CCD (or the relevant CCD Group Member) may determine in its sole discretion (provided always that CCD shall be subject to the obligations of confidentiality set out in Clause 12 in respect of its use of the same).
10.5 The Customer further consents and agrees that CCD (or the relevant CCD Group Member) may contact the Customer (by electronic means or otherwise, including by e-mail, post and/or telephone) to offer Additional Services based on the findings from its review of the Customer’s MSS Data (such Additional Services to be subject to the Customer and the relevant CCD Group Member entering into an Additional Services Contract).
11 Intellectual Property Rights
11.1 The Customer acknowledges and agrees that CCD or the relevant CCD Group Member and/or their licensors own all Intellectual Property Rights in the C3 Solution (including the results generated by the C3 Solution). Except as expressly stated herein, the Contract does not grant the Customer any rights to, or in, any Intellectual Property Rights in respect of the C3 Solution (including the results generated by the C3 Solution).
11.2 CCD will indemnify and hold harmless the Customer against any damages that may be awarded or payable by the Customer to any third party in respect of any claim or action that the Permitted Use of the Software by the Customer infringes the Intellectual Property Rights of any third party (an Intellectual Property Infringement) provided that the Customer:
11.2.1 gives notice to CCD of any suspected Intellectual Property Infringement immediately upon becoming aware of the same;
11.2.2 gives CCD the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement; and
11.2.3 acts in accordance with the instructions of CCD and gives to CCD such assistance, as it shall reasonably require in respect of the conduct of the said defence.
11.3 CCD shall have no liability to the Customer in respect of an Intellectual Property Infringement if the same results from any breach by the Customer of the obligations under the Contract (howsoever arising).
11.4 In the event of an Intellectual Property Infringement CCD shall be entitled at its own option either to:
11.4.1 procure the right for the Customer to continue using the C3 Solution;
11.4.2 make such alterations, modifications, adjustments or substitutions to the Software so that it becomes non-infringing without incurring a material diminution in performance or functionality; or
11.4.3 terminate the Contract.
11.5 This Clause 11.5 and Clause 13.5 state the Customer’s sole and exclusive rights and remedies, and CCD’s entire obligations and liability, for any Intellectual Property Infringement.
12.1 Each Party may be given access to the Confidential Information of the other Party in order to perform its obligations under the Contract. A Party’s Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;
12.1.2 was in the other Party’s lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving Party by a third party without restriction ondisclosure;
12.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence; or
12.1.5 is required to be disclosed by any Laws, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2 Each Party shall hold the other’s Confidential Information in confidence and, unless required by Law and subject to Clause 10.4, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the for the purposes envisaged or permitted by the Contract, save that in the case of CCD, the Customer agrees that its Confidential Information can be disclosed to Hosting Provider and/or the Contractors.
12.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract (and each Party shall be responsible for any such breach by their employees or agents).
13 Limitation of liability
13.1 The following provisions set out the entire liability of CCD (including any liability for the acts and omissions of CCD’s officers, employees, agents and Contractors) in respect of:
13.1.1 any breach of its contractual obligations arising under and/or in connection with the Contract; and
13.1.2 any use made by the Customer of C3 Solution or any part of it; and
13.1.3 any misrepresentation, mis-statement or tortious act or omission (including negligence but excluding any of the same made fraudulently) arising under or in connection with the Contract.
13.2 Any act or omission on the part of CCD or CCD’s staff and Contractors falling within Clause
13.1 shall for the purposes of this Clause 13 be known as an Event of Default.
13.3 Notwithstanding anything to the contrary in the Contract, nothing in the Contract shall limit or exclude CCD’s liability:
13.3.1 for death or personal injury resulting from its own negligence or that of CCD Staff and Contractors; or
13.3.2 fraud or fraudulent misrepresentation; or
13.3.3 to the extent that such liability action or exclusion is not permitted by Law.
13.4 Except as expressly and specifically provided in the Contract:
13.4.1 the Customer assumes sole responsibility for results obtained from the use of the C3 Solution by the Customer, and for conclusions drawn from such use. CCD shall have no liability for any damage caused by errors or omissions in any information, instructions, widgets or scripts provided to CCD by the Customer in connection with the C3 Solution, or any actions taken by CCD at the Customer’s direction; and
13.4.2 the C3 Solution is provided to the Customer on an “as is” and “as available” basis.
13.5 Subject to Clause 13.3, the total liability of CCD in respect of all Events of Default in any Contract Year shall be limited to damages of an amount equal to:
13.5.1 £20,000 in respect of any breach of Clauses 10.1 and 12; and
13.5.2 in respect of all other Events of Default, 125% of the amount of the Charges that have been paid to CCD in the immediately preceding Contract Year or, during the first Contract Year, 125% of the amount of the estimated Charges actuallyto be paid by the Customer to CCD in respect of the first Contract Year.
13.6 Subject to Clause 13.3, CCD shall not be liable to the Customer in respect of any Event of Default for any loss or damage which may be suffered by the Customer (or any person claiming through or under the Customer) whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which falls within the following categories:
13.6.1 loss of profits or turnover;
13.6.2 loss of anticipated savings;
13.6.3 loss of business opportunity;
13.6.4 loss of goodwill;
13.6.5 loss or corruption of data or information;
13.6.6 damage to reputation; or
13.6.7 any special indirect or consequential loss.
13.7 CCD shall not be liable for any damage or losses or any additional damage or losses arising from any Event of Default which arises as a result of or in connection with:
13.7.1 any failure of the Customer to observe and perform its obligations under the Contract;
13.7.2 any unauthorised or incorrect access or use of the C3 Solution or use of the C3 Solution by the Customer other than in accordance with the terms of the Contract or CCD’s instructions; or
13.7.3 any modification or alteration of C3 Solution by any party other than CCD or CCD’s duly authorised Contractors.
13.8 If a number of Events of Default give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under the Contract.
14 Term and termination
14.1 Subject to these Conditions, the Contract shall commence on the Commencement Date and shall continue in full force unless or until:
14.1.1 terminated by CCD pursuant to Clause 3.4 or Clause 14.4; or
14.1.2 terminated by CCD giving not less than 1 months’ written notice to the Customer (provided that such notice shall, in relation to an Annual Subscription, expire on or after the end of the relevant 12 month period for which the Subscription Charges have already been paid by the Customer); or
14.1.3 the Customer terminates its user account by submitting a request through the account settings (which is accepted by CCD).
14.2 The Customer may terminate a Subscription (but not the Contract) at any time by giving notice in writing to CCD or by terminating its Subscription through the Subscription Preferences, provided that the Subscription shall continue to run for the rest of the period for which the Client has paid Subscription Charges prior to coming to an end and shall only terminate at the end of that period. Notwithstanding the foregoing, Subscriptions shall otherwise auto-renew or expire as set out in the relevant Order Form or Subscription Preferences.
14.3 If the Customer fails to pay any Charges on their due date for payment or if CCD is otherwise entitled to terminate the Contract CCD may, without prejudice to any of its other rights and remedies, at its sole discretion, restrict or suspend the Customer’s access to the C3 Solution (until such time as the breach has been remedied to the satisfaction of CCD) without the requirement to give notice.
14.4 CCD may terminate the Subscription and/or the Contract at any time with immediate effect (or following such notice period as it sees fit) by written notice to the Customer if the Customer:
14.4.1 fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than 20 Business Days thereafter;
14.4.2 commits a material breach of any term of the Contract which is irremediable or, if remediable, is not remedied within 20 Business Days after being notified in writing by CCD to do so;
14.4.3 repeatedly breaches any of the terms of the Contract;
14.4.4 suffers an Insolvency Event or suspends or ceases (or threatens to suspend or cease) to carry on all or a substantial part of its business;
14.4.5 suffers a Change of Control;
14.4.6 commits a breach of the Hosting Provider Terms (or any other Contractor’s terms and conditions from time to time), or where CCD otherwise has a right to terminate the Contract and/or the Subscription in accordance with any of the provisions of these Conditions.
14.5 On termination of the Contract and/or the Subscription by either Party for any reason:
14.5.1 all licences and rights granted by CCD to the Customer under the Contract shall immediately terminate;
14.5.2 the Customer shall immediately pay to CCD any outstanding Charges (and shall be entitled to raise and submit further invoices for any Charges which are due but have not yet been invoiced);
14.5.3 no Subscription Charges shall be refundable for any reason;
14.5.4 CCD may (at its discretion) destroy or otherwise dispose of any of the Customer Data in its possession;
14.5.5 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination shall not be affected or prejudiced; and
14.5.6 any Conditions which expressly or by implication survive termination of the Contract or come into force on termination shall continue in full force and effect.
14.6 For the avoidance of doubt, termination of a Subscription shall not have the effect of automatically terminating the Contract, which shall otherwise continue in full force and effect following termination of a Subscription (unless otherwise terminated in accordance with these Conditions).
15 Force Majeure Event
CCD shall not be deemed to be in breach of the Contract (or otherwise liable to the Customer) in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to a Force Majeure Event.
16.1 CCD warrants to the Customer that the services provided under the Contract shall be provided with reasonable skill and care.
16.2 Except as expressly set out in the Contract, all warranties, conditions, terms and undertakings, express or implied, statutory or otherwise, are excluded from the Contract to the fullest extent permitted by law.
16.3 The Customer acknowledges and accepts that:
16.3.1 CCD does not warrant that the Customer’s use of the C3 Solution will be uninterrupted or error-free;
16.3.2 CCD 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;
16.3.3 the C3 Solution has been developed for use in England and Wales the United Kingdom and to the extent that the C3 Solution can be and is accessed or used outside England and Wales the United Kingdom, any such access and/or use is at the Customer’s own risk and shall not, unless otherwise agreed in writing by CCD, form part of the Contract and CCD shall not be liable for any such access or use by or on behalf of the Customer.
16.4 The Customer further acknowledges and agrees that any results generated by the C3 Solution (including the presentation of MSS Data via widgets, scripts or otherwise) are intended to be for the purpose of providing an overview of such Data, but CCD does not warrant the accuracy or completeness of such results nor does CCD warrant that such results are fit for any particular purpose (such as identifying any overspends or savings). The Customer agrees that it shall analyse, interpret and/or use such results at its own risk.
17.1 CCD shall be entitled to delegate any of its obligations under the Contract to any Contractor and the Customer agrees that such services may be subject to the relevant Contractor’s standard terms and conditions as between the Customer and Contractor (which shall apply to the Customer mutatis mutandis and which the Customer agrees it shall comply with, provided that such terms and conditions have been notified to the Customer by CCD).
17.2 The Customer shall only be entitled to recover losses or damages from CCD for a failure to provide any outsourced services by a Contractor if and to the extent that CCD has been able to recover such losses or damages from the Contractor.
17.3 CCD shall be entitled to change any Contractor to such other Contractor as it may (in its sole discretion) determine from time to time or to assume those obligations itself). In the event that CCD appoints another Contractor or to provide the any such Services, CCD shall give notice to the Customer of the same together with the relevant Contractor’s terms and conditions and the Customer shall comply with such terms and conditions.
18.1 The Customer shall not be entitled to assign, charge or otherwise transfer the Contract nor any of its rights or obligations under the Contract, sub-license the right to use the C3 Solution or receive the C3 Solution or hold the benefit of the Contract in trust for any other person without the prior written consent of CCD.
18.2 CCD shall be entitled to delegate any of its obligations under the Contract to any third party and to deal with the Contract in the manner set out in Clause 18.1 without the consent of the Customer.
19 Entire agreement
19.1 The Contract and any documents expressly referred to in it contains the entire understanding between the Parties in relation to its subject matter and supersedes all (if any) subsisting agreements, arrangements, understandings, negotiations, discussions or correspondence (written or oral, express or implied) relating to the same.
19.2 Each Party acknowledges that in entering into the Contract it has not relied on any warranty, representation or undertaking (whether made innocently or negligently) which is not contained in or specifically incorporated into the Contract. Each Party agrees and acknowledges that its only remedy in respect of those representations, statements, assurances or warranties set out in the Contract will be for breach of contract, in accordance with the terms of the Contract, provided always that nothing in these Conditions shall exclude or limit the liability of a Party to the other Party for any fraudulent misrepresentation or warranty fraudulently given and upon which the other Party can prove it has placed reliance.
20 General terms
20.1 The Customer shall at all times after Commencement Date do and execute or procure to be done and executed all other necessary acts, deeds, documents and things to give effect to the Contract.
20.2 CCD may modify these Conditions at any time by providing prior written notice to the Customer, save in respect of adverse changes, in respect of which CCD will provide at least 20 Business Days prior written notice. Subject to the foregoing, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by CCD.
20.3 Notwithstanding anything to the contrary contained in the Contract, the Parties agree and intend that nothing in the Contract shall confer any rights on any third parties whether pursuant to the Contract (Rights of Third Parties) Act 1999 or otherwise.
20.4 A failure, delay or neglect by either Party to exercise any right or remedy or enforce any of the provisions of the Contract shall not be construed or deemed to be a waiver or continuing waiver of that Party’s rights or remedies, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20.5 The Parties agree that nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between them, constitutes any Party the agent of the other Party, nor authorises any Party to make or enter into any commitments for or on behalf of the other Party.
20.6 If any of the provisions of the Contract shall be declared invalid or unenforceable in whole or in part by any competent court or other authority whose decisions shall have the force of law binding on the Parties, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions shall not be affected.
20.7 The Customer shall comply with such policies as CCD may reasonably require the Customer to comply with from time to time (provided that such policies shall be notified to the Customer in advance).
21.1 Any notice required to be given under the Contract shall be in writing and shall be:
21.1.1 delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its registered office address (or such other address as may have been notified by that Party for such purposes); or
21.1.2 sent by e-mail by CCD to the Customer to the relevant e-mail address for the Customer as set out in the Order Form (or such other e-mail address as may have been notified by the Customer from time to time);
21.1.3 sent electronically by the Customer to CCD by using the “Contact Us” submission form available at https://customsconnect.co.uk/contact-us/.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not made between 08:30 to 17:30 GMT on any Business Day, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. An email notice shall be deemed to be served at the time of transmission.
22 Governing Law and Jurisdiction
22.1 The Contract and any dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English Law.
22.2 The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).