BACKGROUND
(A) Axiom TDM Limited (“Axiom“) has developed certain software
applications and platforms which it makes available to subscribers via
the internet on a pay-per-use basis.
(B) The Customer (as set out in the Order Email if available) wishes to use
Axiom’s service in its business operations.
(C) Axiom has agreed to provide, and the Customer has agreed to take
and pay for Axiom’s service on the terms of the Order Email if available, and
these conditions together form the “Agreement”.
1. DEFINITIONS
In these conditions the following expressions shall have the following
meanings unless inconsistent with the context:
“Account Activation Date” means the Account Activation Date set
out in the Order Email.
“Additional Services” those additional services provided by Axiom
from time to time in accordance with an Order Email.
“Authorised Users” means the number of Fee Earners Subscribers
and the Administrator Subscribers set out in the Order Email.
“Authorised Users’ Representative” the representative nominated
by the Customer and notified to Axiom from time to time.
“Commencement Date” the date as per the Order Email.
“Commercially Sensitive Data” the Documentation, Axiom Product
Source Configuration, Search Indexes, Search Logs and Audit Logs
provided or generated by Axiom or other any metadata generated by
or on behalf of Customer under, or any other commercial data
whatsoever or howsoever generated by Axiom in providing the
Services or otherwise in connection with the Agreement, including
Axiom’s pricing information, pricing structure and working practices
and information pertaining thereto.
“Confidential Information” all information in respect of the business
of Axiom and Customer including, without prejudice to the generality
of the foregoing, any ideas, business methods, finance, prices,
business, financial, marketing, development or manpower plans,
customer lists or details, the Commercially Sensitive Data or any
other Intellectual Property Rights owned by Axiom, computer
systems and software including without limit the Software, the
Documentation, products or services, including but not limited to know-how or other
matters connected with the products or services marketed, provided or obtained by
Axiom, and information concerning Axiom’s relationships with actual or potential
Customers, customers or suppliers and any other information which, if disclosed,
shall be liable to cause harm to the party whose confidential information would be
disclosed.
“Customer Data” the data inputted into the Software by the Customer or the
Authorised Users, or by Axiom on the Customer’s behalf.
“Customer Operating Environment” the Customer’s computing environment
(consisting of hardware, software and telecommunications networks) that is to be
used by the Customer in connection with its use of the Services and which is a
system which is an Interoperable Legal System.
“Data Protection Legislation” all laws, regulations, legislative and regulatory
requirements, and codes of practice applicable to the processing of personal data,
including without limitation all the provisions of the General Data Protection
Regulation 2016 (GDPR) and any regulations or instruments thereunder, and the
Privacy and Electronic Communications (EC Directive) Regulations 2003
(SI2003/2426).
“Documentation” documentation provided by Axiom to the Customer or the
Authorised Users from time to time.
“Fair Usage” the fair usage policy as detailed in the Terms & Conditions.
“Fees” fees for the Services (and/or Additional Services as set out on the Order
Email) and other fees agreed between the parties from time to time.
“Force Majeure Event” any cause preventing either party from performing any or all
of its obligations which arises from or is attributable to acts, events, omissions or
accidents beyond the reasonable contemplation and control of the party so
prevented including, without limitation, strikes, lockouts or other industrial disputes
(in each case whether involving the workforce of the party so prevented or any other
party), protests, act of God, war or national emergency, an act of terrorism, riot, civil
commotion, malicious damage, compliance with any law or governmental order, rule,
regulation or direction, accident, breakdown of plant or machinery or
telecommunications, fire, explosion, flood, storm, epidemic or default or delays of
suppliers or sub-contractors.
“Initial Term” the initial term for the provision of the Services as set out in the Order
Email.
“Intellectual Property Rights” all intellectual and industrial property rights including
patents, know-how, registered trademarks, registered designs, utility models,
applications for and rights to apply for any of the foregoing, unregistered design
rights, unregistered trademarks, rights to prevent passing off for unfair competition
and copyright, database rights, topography rights, domain names and any
other rights in any invention, discovery or process, in each case in the United
Kingdom and together with all renewals and extensions.
“Interoperable Legal System(s)” a system which is interoperable with the Software
and is defined as including 3rd party connectivity to HyperLaw.
“Normal Business Hours” 9.00 am to 5.30 pm local UK time, each
Business Day.
“Order Email” the Order Email details the Services.
“Party(ies)” the Customer and Axiom.
“Product Description” the description of the Software.
“Renewal Term” as described in Clause 2.2.
“Services” any services provided by Axiom under the Agreement including without
limit the subscription services provided by Axiom to the Customer, the Support
Services and any Additional Services.
“Software” the software tool which provides search and content results from
Customer Data including without limit all releases and versions of those programs
issued by Axiom to the Customer.
“Support Services” support and Support Services in relation to the Software and the
Services to be provided to the Customer as detailed in clause 9 as amended from
time to time.
“Term” shall mean the Initial Term and any Renewal Term.
“User Subscriptions” the user subscriptions purchased by the Customer pursuant to
the Order Email which entitle Authorised Users to access and use the Services and
the Documentation in accordance with the Agreement.
“Virus” anything or device (including any software, code, file or programme) which
may: prevent, impair or otherwise adversely affect the operation of any computer
software, hardware or network, any telecommunications service, equipment or
network or any other service or device; prevent, impair or otherwise adversely affect
access to or the operation of any programme or data, including the reliability of any
programme or data (whether by re-arranging, altering or erasing the programme or
data in whole or part or otherwise); or adversely affect the user experience, including
worms, trojan horses, viruses and other similar things or devices.
In the event of a conflict between these terms and conditions or the Order Email, the
Order Email shall take precedence over these terms and conditions.
2. COMMENCEMENT AND DURATION
2.1 The Agreement will operate as a framework agreement which defines the
contractual terms and conditions under which Axiom will supply the Services to the
Customer.
2.2 The Agreement shall commence on the Commencement Date and shall continue
throughout the Initial Term specified. The Initial Term will be extended in line with the
provisions set out in Section 7 of these Terms and Conditions. There shall be no
variation of these Terms and Conditions unless expressly agreed in writing between
both parties.
2.3 Subject to the payment of the appropriate Fees, Axiom shall provide any
Additional Services (as agreed between the parties from time to time in a separate
Order Email) and under the terms of the Agreement.
3. USER SUBSCRIPTIONS
3.1 Subject to the Customer purchasing the User Subscriptions in accordance with
the Order Email and the restrictions set out in these conditions, Axiom hereby grants
to the Customer a non-exclusive, non-transferable right to permit the Authorised
Users to use the Services and the Documentation during the Term solely for the
Customer’s internal business operations within the United Kingdom, unless
otherwise agreed in writing.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 the maximum number of Authorised Users that it authorises to access and use
the Services and the Documentation shall not exceed the number of User
Subscriptions it has purchased from time to time;
3.2.2 it will not allow or suffer any User Subscription to be used by more than one
individual Authorised User unless it has been reassigned in its entirety to another
individual Authorised User, in which case the prior Authorised User shall no longer
have any right to access or use the Services and/or Documentation;
3.2.3 it shall not allow Administrator Subscribers to perform fee
earning tasks using the Services;
3.2.4 each Authorised User shall keep a secure password for his use of the Services
and Documentation and that each Authorised User shall keep his password
confidential;
3.2.5 it shall maintain a written, up to date list of current Authorised Users and
provide such list to Axiom within 5 Business Days of Axiom’s written request at any
time or times;
3.2.6 it shall permit Axiom to audit the Services (either remotely or on-site at the
Customer’s premises), including, but not limited to, to establish the name, password
or status of each Authorised User and to establish whether Administrator
Subscribers are using the Services for fee earning purposes;
3.2.7 if any of the audits referred to in clause 3.2.6 reveal that any password has
been provided to any individual who is not an Authorised User, then without
prejudice to Axiom’s other rights, the Customer shall promptly disable such
passwords, and Axiom shall not issue any new passwords to any such individual;
3.2.8 if any of the audits referred to in clause 3.2.6 reveal that the Customer has
underpaid Subscription Fees to Axiom, then without prejudice to Axiom’s other
rights, the Customer shall pay to Axiom an amount equal to such underpayment as
calculated in accordance with the prices set out in the Order Email within 10
Business Days of the date of the relevant audit.
3.3 The Customer shall not, and shall procure that the Authorised Users shall not,
access, store, distribute or transmit any Viruses, or any material during its use of the
Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or
racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief,
sexual orientation, disability; or
3.3.6 in a manner that is otherwise illegal or causes damage or injury to any person
or property; and Axiom reserves the right, without liability or prejudice to its other
rights to the Customer, to disable the Customer’s access to any material that
breaches the provisions of this clause.3.4 The Customer shall not, and shall procure
that the Authorised Users shall not, except as may be allowed by any applicable law
which is incapable of exclusion by agreement between the parties:
3.4.1. copy or attempt to copy, modify, duplicate, create derivative works from,
frame, mirror, republish, download, display, transmit, or distribute all or any portion of
the Software and/or Documentation (as applicable) in any form or media or by any
mean and shall notify Axiom immediately on becoming aware of any unauthorised
use of the Software or Services or Documentation by any person; or
3.4.2. attempt to reverse compile, disassemble, reverse engineer or otherwise
reduce to human-perceivable form all or any part of the Software; or
3.4.3 access all or any part of the Services and Documentation in order to build a
product or service which competes with the Services and/or the Documentation: or
3.4.4 use the Services and/or Documentation to provide services to third parties; or
3.4.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or
otherwise commercially exploit, or otherwise make the Services and/or
Documentation available to any third party except the Authorised Users, or
3.4.6 attempt to obtain, or assist third parties in obtaining, access to the Services
and/or Documentation, other than as provided under this clause 3.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised
access to, or use of, the Services and/or the Documentation and, in the event of any
such unauthorised access or use, promptly notify Axiom.
3.6 The rights provided under this clause 3 are granted to the Customer only and
shall not be considered granted to any subsidiary or holding company of the
Customer.
4. SERVICES
4.1 Axiom shall, during the Term, provide the Services and make available the
Documentation to the Customer on and subject to the terms of the Agreement.
4.2 Axiom shall use commercially reasonable endeavours to make the Services
available 24 hours a day, seven days a week, except for maintenance works, which
shall be carried out wherever possible outside of Normal Business Hours.
4.3 Whilst Axiom will use all reasonable endeavours to meet any delivery dates, any
dates quoted for delivery of Services are approximate only and time is not of the
essence in relation to Axiom’s performance of its obligations under the Agreement.
4.4 Axiom will, as part of the Services and at no additional cost to the Customer,
provide the Customer with its standard customer support services during Normal
Business Hours in accordance with clause 9 (which Axiom may amend in its sole
and absolute discretion from time to time). The Customer may purchase enhanced
support services separately at Axiom’s then current rates.
5. RESTRICTIONS ON USE
5.1 The Customer shall, and ensure that the Authorised Users shall:
5.1.1 effect and maintain adequate security measures to safeguard the Software or
Services against access to or use by unauthorised persons and ensure that the
Software or Services and the Documentation and all copies are kept under its
control. To the extent permissible by law Axiom shall not be liable for any loss or
damage that may occur or the Customer or any Authorised User may incur because
of any misuse of the Software or Services;
5.1.2 only use the subscription services in line with the mutually agreed Fair Usage
Policy which forms part of these Terms and Conditions. That Fair Usage Policy is set
forth as follows: –
Each paid for subscription user shall have a Fair Use processed page limit of up to
10,000 OCR processed pages in any one-month period, together with a Fair Use
storage limit of 20GB. The Fair Usage Policy shall therefore be a simple computation
of the number of paid subscriptions multiplied by 10,000 processed pages per
month, and the number of paid subscriptions multiplied by the 20GB storage limit.
The Fair Usage Policy test will be applied continuously throughout the duration of the
subscription period. Prevailing charge rates for exceeding the Fair Usage Limits will
be published on the Axiom website.
5.1.3 indemnify Axiom from and against all claims, liabilities, proceedings, costs,
damages, losses, or expenses incurred by Axiom caused by, or in any way
connected with, Customer’s and Authorised User’s use of the Services, or the
unauthorised use of the Services by any third party, whether through breach of the
Agreement or any other negligent or wrongful act of Customer, Authorised User or
third party (as appropriate)
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
6.1.1 provide all such assistance and access to its sites and the Customer Operating
Environment as is reasonably necessary to allow Axiom to perform its obligations
under the Agreement;
6.1.2 ensure that Axiom can liaise directly with the Authorised Users, as is
reasonably necessary, in order to perform its obligations under the Agreement;
6.1.3 make available a nominated member of staff to attend training sessions in
relation to the Services and feed the output of such training sessions through to the
Authorised Users or otherwise arrange for the Authorised Users to attend such
training sessions;
6.1.4 provide Axiom with a list of Customer sites where the Services will be used and
facilitate access to those sites.
6.1.5 obtain and maintain all necessary license, consents and permissions
necessary for Axiom, its contractors and agents to perform their obligations under
the Agreement;
6.1.6 ensure that its network and systems comply with the relevant specifications
provided by Axiom from time to time including but not limited to any hardware
specification provided by Axiom from time to time;
6.1.7 be solely responsible for procuring and maintaining its network connections
and the Customer Operating Environment and telecommunications links from its
systems to the Axiom systems, Software or Services and all problems conditions,
delays, delivery failures and all other loss or damage resulting from or relating to the
Customer’s (or any Authorised User’s) network connections or telecommunication
links or caused by the internet.
6.2 At Axiom’s written request, which shall not be more frequently than bi-annually,
the Customer shall furnish or procure that the Authorised Users furnish Axiom with a
signed statement verifying that the Services and the Documentation are being used
in accordance with the provisions of the Agreement and providing the relevant
details to Axiom relevant to the Software and Services being provided to allow it to
do so. The Customer agrees to grant Axiom access, upon reasonable prior notice
and during Normal Business Hours, to its premises to audit the use of the Services
and Documentation.
7. FEES
7.1 The Customer shall pay the Fees as detailed in the Order Summary in
accordance with this clause, subject to any other payment terms detailed in the
Order Email.
7.2 For Prepaid Annual Subsciptions, Fees are payable in advance of activation.
7.3 For Pay Monthly Annual Subcriptions, fees will be collected via Direct Debit on
the allocated date for each calendar month and will reoccur for a minimum of 12
monthly instalments (as set of in the Order Email).
7.4 Auto Renewal. Upon expiry of the Initial Term or any subsequent renewal
thereof, the Subscription shall renew automatically unless otherwise terminated in
accordance with the provisions of these Terms and Conditions. Axiom will notify the
customer 30 days and 14 days prior to contractually automatically renewing the User
Subscription in accordance with the original Order Email. Unless otherwise agreed
by the parties in writing prior to any Renewal Term, each renewal shall be on the
same terms and conditions provided herein.
7.5 The Customer shall pay supplementary charges:
7.5.1 when Axiom responds to a fault report or request for assistance and no
problem is found to exist (after proper investigation) or the problem reported is one
not covered by the Support Services; or
7.5.2 when performance of Axiom’s obligations is made significantly more difficult or
made more costly by failure of Customer or any Authorised User to comply with its
obligations.
7.6 Fees in respect of any Additional Services or other works performed by Axiom
(which are not performed under an agreed fee in the Order Email) shall be agreed in
advance and chargeable by Axiom at its time (on a pro-rata basis for each part day)
and material rates in force from time to time.
7.7 All sums due under the Agreement shall be paid in pounds sterling and are
exclusive of any VAT which shall be paid at the rate for the time being prescribed by
law.
7.8 All amounts due under the Agreement from Axiom to the Customer shall be due
and payable as set out in the Order Email, or if not specified, within 30 days of the
date of the relevant invoice.
7.9 If Axiom has not received payment of sums due to it by the Customer within 5
Business Days of the due date, and without prejudice to any other rights and
remedies Axiom may have, and without liability to the Customer, at its sole option,
terminate the Agreement with immediate effect or disable the Customer’s access to
all or part of the Services. Axiom shall be under no obligation to provide any or all the
Services while such payment, interest, and any administrative and/or legal costs of
collecting the payment, remain unpaid.
7.10 If 5 Business Days before the contracted Renewal Term Axiom have not
received payment for the renewal subscription, then the customer will have up to and
including the current Renewal Term to extract and/or repatriate all their data and
working documents to another system, an external device or an external repository.
This will be the sole responsibility of the customer. In addition to normal renewal
notifications from Axiom, there will be no further prompting by Axiom.
7.11 If beyond the Renewal Term the customer has failed to pay the renewal
subscription, then Axiom will be under no obligation to continue to store and manage
such data without appropriate fees being paid by the customer. Such fees will be
known as a termination payment.
7.12 Axiom will at its sole discretion either leave such accounts and data in the
Microsoft Azure Cloud or extract them to an external data source. In any event,
Axiom will be entitled to charge the customer £2000 per subscription for the
management and extraction of such data together with the direct costs of any media
used to repatriate the said data back to the customer. No data will be repatriated
without cleared receipt of the termination payment first.
7.13 If the Customer Operating Environment is compromised, Axiom may suspend
the Customer’s access to the Services. The Customer must address the vulnerability
and demonstrate to Axiom’s satisfaction that such vulnerability has appropriately
addressed and/or fixed prior to Axiom resuming the Customer’s access to the
Services. A reconnection fee may be payable at Axiom’s sole discretion.
7.14 Axiom will increase the User Subscription price annually at the point of the
Renewal Term by a minimum of the percentage increase in the UK Retail Price
Index (RPI), as published by the Office for National Statistics (ONS). This base price
increase will take effect from the first day of the renewal and the RPI percentage will
be set as at that calendar point in time and based on the RPI % rate given on the
ONS website.
7.15 Should Axiom be subject to any unforeseen third-party price increases which
are beyond their reasonable control, then Axiom reserves the right to pass on these
increases and vary the Subscription price accordingly. Any such increase will only be
applied to any renewal period beyond the Initial Term and will be advised in writing.
7.16 If any sum payable under the Agreement is not paid when due then, without
prejudice to Axiom’s other rights under the Agreement, that sum shall bear interest
from the due date until payment is made in full both before and after any judgment,
at 5 per cent per annum over Barclay’s Bank plc base rate from time to time. Nothing
in the Agreement shall prevent Axiom from claiming interest in accordance with the
Late Payment of Commercial Debts (Interest) Act 1998.
8. CUSTOMER’S ACKNOWLEDGEMENTS
8.1 The Customer acknowledges that:
8.1.1 the Software has not been written to satisfy the Customer’s individual
requirements. It is Customer’s responsibility to ensure that the Services and
Documentation meet its requirements. Axiom does not warrant that it shall be
suitable for such requirements;
8.1.2 software in general is not error free and that the existence of minor errors shall
not by themselves constitute a breach of the Agreement and that Axiom shall not be
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 and Documentation may
be subject to limitations, delays and other problems inherent in the use of such
communications facilities;
8.1.3 they shall have sole responsibility for the legality, reliability, integrity, accuracy
and quality of the Customer Data and the search criteria used by the Authorised
Users in their use of the Services;
8.1.4 Axiom shall not be responsible for outputs or the quality of data provided from
3rd party systems that present within the solution’s search results and for
conclusions drawn, and actions taken, from such use by the Customer; and
8.1.5 Axiom may provide fixes for Software from time to time via new versions of a
Software release.
8.2 The Customer shall own all right, title and interest in and to all the Customer
Data and shall have sole responsibility for the legality, reliability, integrity, accuracy
and quality of the Customer Data. Axiom shall use reasonable efforts to ensure the
accurate migration of any Customer Data but gives no warranties as to the
completeness or accuracy of the same. The Customer shall be responsible for
checking the accuracy and completeness of any Customer Data or other migrated
data, and shall promptly give details to Axiom of any inaccuracies or omissions;
8.3 In the event of any loss or damage to Customer Data, the Customer’s sole and
exclusive remedy shall be for Axiom to use reasonable commercial endeavours to
restore the lost or damaged Customer Data from the latest back-up of such
Customer Data maintained by Axiom in accordance with its archiving procedures.
Axiom shall not be responsible for any loss, destruction, alteration or disclosure of
Customer Data caused by any third party (except those third parties sub-contracted
by Axiom to perform services related to Customer Data maintenance and back-up).
8.4 The Customer acknowledges and agrees that the Supplier and/or its licensors
own all intellectual property rights in the Services and the Documentation. The
Agreement does not grant the Customer any rights to, or in, patents, copyright,
database right, trade secrets, trade names, trademarks (whether registered or
unregistered), or any other rights or licences in respect of the Services or the
Documentation.
9. SUPPORT SERVICES
9.1 Axiom shall provide the Support Services in accordance with this clause and/or
as further detailed in any Order Email.
9.2 Axiom shall use its reasonable endeavours to:
9.2.1 provide first-line support personnel to take calls during the service hours who
shall verify the initial priority set at the support desk via discussion between service
delivery personnel and the Customer, allocate calls with an initial priority via
discussion between the support desk and the Customer and offer an initial
assessment of the time it shall take to resolve;
9.2.2 provide an answer-phone service to record calls outside Normal Business
Hours, which shall be actioned during Normal Business Hours;
9.2.3 ensure that a call remains open until a satisfactory resolution has been
reached in agreement with the Customer. If the Customer is unavailable and two
attempts have been made to contact the caller, service delivery staff shall close the
call. If this is the case a message shall be left with someone at the Customer’s office
and an e-mail sent. Should the resolution prove unsatisfactory the original call can
be re-opened without the need to raise a new call with the support desk;
9.2.4 notify all Customers of any problem or issue that may significantly impact their
business and, where applicable, update the Software as soon as practicable;
9.2.5 provide follow-up communication providing detail of resolution to the
problem/issue identified above; and
9.2.6 provide second-line staff for the resolution and fixing of software problems.
9.3 The Customer acknowledges that:
9.3.1 it shall be responsible for any loss or corruption of data or malfunction of the
live system, caused by any of Customer’s own staff or other contract third parties.
The rectification of such loss or corruption falls outside all normal support
agreements with Axiom;
9.3.2 it shall ensure that new members of staff receive appropriate and relevant
Software, application or systems administration training prior to using the Software
and are made aware of any available electronic and hard copy documentation and
help files;
9.3.3 fees for Support Services are for a reasonable level of support assistance. If
Axiom believes, in its sole opinion, that Support Services are being used
excessively, for example as a replacement for training, Axiom reserves the right to
charge for such Support Services on an hourly basis at its then current rates in force.
9.4 The following are excluded from the scope of the Support
Services:
9.4.1 meetings requested by Customers relating to projects work may be chargeable
in addition to Support Services (e.g. where general technical advice or consultancy is
required but it is unrelated to core Software functionality or any links with it);
9.4.2 out of hours and weekend working;
9.4.3 where a problem or fault is caused directly or indirectly by a fault or malfunction
(in the reasonable opinion of Axiom) in the Customer Operating Environment; and
9.4.4 support which is required where the Customer or the Authorised User has not
implemented Axiom’s recommendations in respect of solutions to faults previously
notified to Customer.
10. WARRANTY
10.1 Axiom warrants that the Services (including without limit the Support Services)
shall be provided with reasonable skill and care.10.2 Axiom does not warrant that the
Software shall be free from all known viruses but shall use commercially reasonable
efforts to check for the most commonly known viruses prior to delivery.
11. INTELLECTUAL PROPERTY
11.1 All patents in (whether actual or pending and whether in the United Kingdom or
anywhere in the world) and all other Intellectual Property Rights in the Software,
Services, Commercially Sensitive Data, Axiom’s Confidential Information and the
Documentation are and shall remain the property of Axiom (or its licensors).
11.2 Axiom shall defend or, at its option, settle any claim or proceeding brought
against a Customer, that the normal use of the Services by Customer in accordance
with the Agreement infringes any Intellectual Property Rights of any third party, and
shall pay any damages finally awarded against the Customer in respect of such
claim together with any reasonable costs and expenses incurred by Customer
provided that Axiom is given immediate and complete control of such claim and all
information and assistance, at Axiom’s cost, as Axiom reasonably requires, and that
Customer does not do, or omit to do anything which may prejudice the defence of
such claim.
11.3 In the event that a claim as contemplated by Clause 11.2 is made or in Axiom’s
opinion is likely to be made, Axiom may at its option:
11.3.1 procure the right for Customer to continue to use the Services affected
without materially affecting the functionality;
11.3.2 change or replace all or any part of the Services without materially affecting
the functionality; or11.3.3 if the options under Clause 11.3.1 or 11.3.2 are not
reasonably commercially available to Axiom, terminate the Agreement immediately
upon written notice to the Customer, in which case Axiom shall refund the Fees in
respect of the affected Services less a reasonable charge for their use prior to such
termination.
11.4 The indemnity set out above shall not apply to any claim arising directly or, to
the extent applicable, indirectly out of any of the following:
11.4.1 Axiom’s compliance with Customer’s design or design instructions or
requirements;
11.4.2 any use of the Services in a manner, or for a purpose, which was not
foreseeable by Axiom;
11.4.3 the infringement results from the assembly, function or use of the Services in
combination with any products or software or services not supplied by Axiom;
11.4.4 the infringement results from the acts or omissions of Customer or the
Authorised Users; or
11.4.5 the modification of the Services by Customer or the Authorised Users or by
any third party.
11.5 Clauses 11.2 and 11.3 state the entire liability of Axiom to the Customer in
respect of any claim contemplated by Clause 11.2.
11.6 The Customer grants to Axiom an irrevocable, perpetual, royalty-free licence in
any and all Intellectual Property Rights in data outcomes and reporting arising from
the Customer’s use of the Services, including, but not limited to, enriched data
reporting and history at the date of their creation, and shall do all acts and execute
all such deeds and documents as may be necessary to give effect to such licence.
12. CONFIDENTIALITY
12.1 Axiom may have access to Confidential Information of the Customer under the
Agreement and vice versa. A party’s Confidential Information shall not include
information that:
12.1.1 is or becomes publicly known through no act or omission of the receiving
party; or
12.1.2 was in the other party’s lawful possession prior to the disclosure; or
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction
on disclosure; or
12.1.4 is independently developed by the receiving party, which development can be
shown by written evidence; or
12.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by
any regulatory or administrative body.
12.2 The Customer acknowledges that all or part of the Commercially Sensitive
Information shall constitute Confidential Information and that the disclosure of the
same without the permission of Axiom would or is likely to prejudice Axiom’s
commercial interests. The Customer shall, and shall procure that the Authorised
Users shall, use the same standard of care to protect the Commercially Sensitive
Information as it uses to protect its own similar sensitive and confidential information,
but in no event shall it use less than reasonable and prudent care.
12.3 The Customer agrees with Axiom to keep confidential and in strict confidence
the terms of the Agreement.
12.4 The Customer and Axiom agree to keep confidential and in strict confidence
any and all Confidential Information that it may acquire in relation to the other party,
not to use such Confidential Information (save in the provision of the Services or to
comply with its obligations under the Agreement and not to disclose the same to a
third party (other than it’s professional advisers or sub-contractors who are under a
similar duty to protect Confidential Information) unless required by law.
12.5 The Customer and Axiom shall ensure that its officers and employees comply
with the provisions of this Clause 13 and 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 this clause 12. In
particular, the Customer shall ensure that the Authorised Users are aware of and
comply with the confidentiality obligations set out in this clause 12 as if they were a
party to the Agreement.
12.6 Axiom may disclose the Customer’s Confidential Information to those of its
representatives or sub-contractors who need to know this Confidential Information in
order that Axiom may provide the Services under the Agreement, provided that:
12.6.1 it informs its representatives or sub-contractors of the confidential nature of
the Confidential Information before disclosure; and
12.6.2 it procures that its representatives or sub-contractors shall, in relation to any
Confidential Information disclosed to them, comply with the Agreement, and
particularly this Clause 13, as if they were named herein.
12.7 The provisions of this Clause 12 shall survive any termination of the Agreement
for a period of 5 years from termination.
13. TERMINATION AND CONSEQUENCES OF TERMINATION
13.1 Without affecting any other rights that it may be entitled to, either Axiom or the
Customer may, by written notice served on the other, terminate the Agreement
immediately if the other:
13.1.1 is in material breach of any of the terms of the Agreement and, where the
breach is capable of remedy, and the other party fails to remedy such breach within
30 days after service of the notice (which notice shall specify the breach and require
it to be remedied), provided that any such notice is served within three months of the
breach occurring or becoming known to the party serving the notice; or
13.1.2 summons a meeting of its creditors, makes a proposal for a voluntary
arrangement, becomes subject to any voluntary arrangement, is unable to pay its
debts within the meaning of section 123 Insolvency Act 1986, has a receiver,
manager or administrative receiver appointed over any of its assets, undertakings or
income, has passed a resolution for its winding-up (save for the purpose of a
voluntary reconstruction or amalgamation), is subject to a petition presented to any
Court for its winding-up (save for the purpose of a voluntary reconstruction or
amalgamation), has a provisional liquidator appointed, has a proposal made for a
scheme of arrangement, has an administrator appointed in respect of it or is the
subject of an application for administration filed at any court or a notice of
appointment of an administrator filed at any court or a notice of intention to appoint
an administrator given by any person or is the subject of a notice to strike off the
register at Companies House.
13.2 Upon termination of the Agreement howsoever arising:
13.2.1 for Pay Monthly Subscribers, if you cancel your Direct Debit prior to your last
contracted monthly payment as per your Order Summary, you will receive an invoice
for the outstanding balance equating to the full 12 months subscription price less any
monthly payments made up to the date of termination.
13.2.2 all sums payable to Axiom by Customer shall become immediately due and
payable;
13.2.3 the right to use the Services shall terminate (and Customer shall immediately
inform the Authorised Users of such termination); and
13.2.4 the Customer shall promptly return to Axiom or destroy (at Axiom’s option) all
copies of the Documentation in its possession or control and shall procure that the
Authorised Users do the same and shall confirm the same in writing to the Customer
within 7 days of termination.
13.3 The termination of the Agreement howsoever arising is without prejudice to the
rights, duties and liabilities of either party accrued prior to termination.13.4 The
clauses in the Agreement which expressly or impliedly have effect after termination
shall continue to be enforceable notwithstanding termination.
13.4 If the Agreement is terminated prior to the end of the Term, other than by
reason of a material breach by Axiom, all Fees payable up to the end of the Term
shall be immediately due and payable by the Customer.
13.5 Notwithstanding the foregoing, Axiom may suspend the Services without liability
if:
13.5.1 Axiom reasonably believe that the Services are being used in breach of the
Agreement and the Customer does not remedy the failure within fourteen (14) days
of Axiom’s written notice to the Customer describing the breach;
13.5.2 the Customer does not co-operate with Axiom’s reasonable investigation of
any suspected violation of the Agreement;
13.5.3 there is an attack on the Services, or the Services are accessed by or
manipulated by a third party without Axiom’s consent;
13.5.4 Axiom is required by law to suspend the Services or the Customer’s access to
the Services; or
13.5.5 there is another event for which Axiom reasonably believes that a suspension
of the Services is necessary to protect its network, system, the Services or its other
Customers.
13.6 Axiom will use reasonable endeavours to give the Customer advance notice of
a suspension under Clauses 13.1 to 13.6.5 (inclusive), unless Axiom determines in
its reasonable commercial judgement that an immediate suspension is necessary to
protect Axiom or its Customers from an imminent and significant operational or
security risk.
14. LIMITATION AND EXCLUSION OF LIABILITY
14.1 Axiom does not exclude its liability (if any) to Customer:
14.1.1 for personal injury or death resulting from Axiom’s negligence;
14.1.2 for any matter to the extent for which it would be illegal for Axiom to exclude
or to attempt to exclude its liability; or
14.1.3 for fraud or fraudulent misrepresentation.
14.2 Except as set out in Clause 10, Axiom makes no express warranties with
respect to the Software, Services and Documentation and Axiom hereby excludes to
the fullest extent permissible in law, all conditions, warranties (including without
limitation any warranty that the Software or Services shall meet Customer’s
requirements or that its operation shall be uninterrupted or error free) and
stipulations, express (other than those set out in the Agreement) or implied,
statutory, customary or otherwise which, but for such exclusion, would or might
subsist in favour of Customer.
14.3 Axiom shall have no liability for any damage caused by errors or omissions in
any information, Customer Data, instructions or materials provided to Axiom by the
Customer or used in relation to the Services, or from any conclusions drawn by the
Customer because of its use of the Services, or for any action taken by Axiom at
the Customer’s direction.14.4 Axiom accepts no liability in respect to the functionality
or interoperability of any third-party software or interoperable systems with the
Software.
14.5 Subject to Clause 14.1, Axiom’s entire liability under or in connection with the
Agreement (including any liability for the acts or omissions of its employees, agents
and subcontractors) whether in contract, tort (including without limit negligence),
breach of statutory duty, restitution or otherwise in any event, in respect of all losses
in any contractual year, shall be limited to 100% of the Fees paid or payable under
the Agreement in the preceding 12 month period.
14.6 Except as provided in Clause 14.1, Axiom shall be under no liability to
Customer whatsoever (whether in contract, tort (including negligence), breach of
statutory duty, restitution or otherwise) for any injury, death, damage or direct,
indirect or consequential loss (all three of which terms include, without limitation,
pure economic loss, loss of profits, loss of business, loss of data, loss of savings,
depletion of goodwill and like loss) howsoever caused.
14.7 Axiom shall not be in breach of the Agreement to the extent its failure to
perform an obligation under the Agreement is because of Customer’s failure, or any
failure of the Authorised Users, to perform their obligations under or in connection
with the Agreement.
15. FREEDOM OF INFORMATION
15.1 Subject always to Clause 12, should the Customer receive a request to disclose
the Commercially Sensitive Information (or part thereof) or details pertaining thereto
from another party or person (whether under an application under the Freedom of
Information Act2000 or otherwise), or should the Information Commissioner serve a
notice on the Customer requiring the disclosure of the Commercially Sensitive
Information, then the Customer shall:
15.1.1 promptly notify and consult with Axiom when considering a request for access
to such Commercially Sensitive Information (including without limit advising Axiom if
the Customer is considering disclosing such Commercially Sensitive Information)
and if required by Axiom appeal against the notice to the Information Tribunal and/or
apply redactions to such Commercially Sensitive Information;
15.1.2 use all its reasonable endeavours to withhold Commercially Sensitive
Information (or details pertaining thereto), under an absolute or qualified exemption
of the Freedom of Information Act, or otherwise where such disclosure would be
disproportionate, unnecessary or unwarranted.
15.1.3 immediately provide Axiom with written notice of such obligation and the
opportunity to oppose such disclosure or obtain a protective order.
16. FORCE MAJEURE
Neither the Customer nor Axiom shall be liable to the other for any failure or delay or
for the consequences of any failure or delay in performance of the Agreement if it is
due to a Force Majeure Event, and the party so delayed shall be entitled to a
reasonable extension of time for performing such obligations.
17. DATA PROTECTION
17.1 Axiom and the Customer shall comply with their respective obligations under
the General Data Protection Regulation 2016 and any other applicable data
protection legislation (the “Act”) and the Customer shall ensure it has all relevant
consents required for Axiom to process Personal Data and Sensitive Personal Data
in order for Axiom to comply with its obligations under the Agreement. For the
avoidance of doubt, Axiom shall not be liable for any breach of the Act by the
Customer or as a result of any disclosure of data to a third party by the Customer.
17.2 Where Axiom or any of its sub-contractors, as part of the fulfilment of their
obligations under the Agreement, processes personal data on the Customer’s behalf,
the parties record their intention that the Customer shall be the data controller, and
Axiom shall be a data processor and in any such case:
17.2.1 the Customer acknowledges and agrees that the personal data may be
transferred or stored outside the EEA or the country where the Customer and the
Authorised Users are located in order to carry out the Services and Axiom’s other
obligations under this Agreement;
17.2.2 the Customer shall ensure that the Customer is entitled to transfer the
relevant personal data to Axiom so that Axiom may lawfully use, process and
transfer the personal data in accordance with this agreement on the Customer’s
behalf;
17.2.3 the Customer shall ensure that the relevant third parties have been informed
of, and have given their consent to, such use, processing, and transfer as required
by all applicable data protection legislation; and
17.2.4 each party shall take appropriate technical and organisational measures
against unauthorised or unlawful processing of the personal data or its accidental
loss, destruction or damage.
18. NON-SOLICITATION
18.1 The Customer shall not during the Term, nor for a period of twelve months after
termination of the Term (howsoever caused), solicit or employ Axiom’s employees or
contractors who have been employed or engaged in the performance of the
Services.
18.2 For the purposes of this Clause 18, ‘solicit’ means the soliciting of any person
with a view to engaging such person as an employee, director, sub-contractor or
independent contractor. In the event that Customer is in breach of Clause 18.1
above, the Customer shall pay to Axiom by way of liquidated damages an amount
equal to 100 (one hundred) per cent of the gross annual salary (as at the time of the
breach) of the person so employed or engaged.
19. NOTICES
19.1 All notices made or that are required under the Agreement shall be in writing or
by email and shall be sent to the addresses set out on the Order Email (or such
other address as may be notified in writing or by email from time to time) by first
class pre-paid letter, email transmission, fax transmission, or delivered by hand.
19.2 All notices shall be deemed to have been received:
19.2.1 by first class post, 48 hours after the date of mailing;
19.2.2 by hand, immediately upon delivery;
19.2.3 by email, immediately upon transmission; or
19.2.4 by fax, immediately upon transmission.
20. DISPUTE RESOLUTION
20.1 If any dispute arises out of the Agreement (“a Dispute”) the parties shall attempt
to resolve it by negotiating in good faith. Subject to Clause 20.2, the procedures set
out in the rest of this Clause 20 shall be followed prior to the issue of any
proceedings or in relation to any Dispute concerning matters of procedure and
management.
20.2 Any Dispute which the parties fail to resolve within 2 Business Days of its first
notification by one party to the other shall be referred to Axiom’s Account Manager
(or delegated representative) for Axiom and Customer’s representative for resolution
(unless the parties agree otherwise in writing).
20.3 If the relevant Dispute remains unresolved within 2 Business Days of its referral
to the parties’ respective individuals as set out in Clause 20.2, then the Dispute shall
be referred to Axiom’s CEO (or delegated representative) and the Customer’s CEO
(unless the parties agree otherwise in writing).
20.4 If the relevant Dispute remains unresolved following its referral to the parties’
respective individuals as set out in Clause 20.3, then the parties shall be at liberty to
commence proceedings. However, they shall consider on an ongoing basis whether
or not it would be suitable to enter mediation.
20.5 This Clause 20 shall not prevent either party from:
20.5.1 seeking injunctive relief in the case of any breach or threatened breach by the
other of any obligation of confidentiality or any infringement by the other of
Intellectual Property Rights; or20.5.2 commencing any proceedings where
reasonably necessary to avoid any inability to claim due to the rules on limitation of
actions; or
20.5.3 commencing proceedings in the case of non-payment of an invoice.
21. GENERAL
21.1 This Agreement and other documents referred to in it (each of which are
incorporated into and form part of the Agreement), constitute the entire agreement
between the Customer and Axiom, and supersedes any previous agreements,
between the parties relating to the subject matter of the Agreement. The parties
acknowledge that the Agreement has not been entered into wholly or partly in
reliance on, nor has either party been given any warranty, statement, promise or
representation made by or on behalf of the other which is not specifically set out in
the Agreement. To the extent that any such warranties, statements, promises or
representations have been given each party unconditionally and irrevocably waives
any claims, rights or remedies which it might otherwise have had in relation to them,
provided that nothing in this Clause 21.1 shall exclude any liability which one party
would otherwise have to the other party in respect of any statements made
fraudulently.
21.2 A variation of the Agreement is valid only if it is in writing and signed by or on
behalf of each party.
21.3 No failure or delay by any party to exercise any right, power or remedy shall
operate as a waiver of it nor shall any partial exercise preclude any further exercise
of the same, or of some other right, power or remedy.21.4 The Customer shall not
assign, delegate or otherwise transfer any of its rights and obligations under the
Agreement without the prior written consent of Axiom. Axiom shall be entitled to
assign the benefit and delegate the burden of the Agreement, and/or otherwise
novate, sub-contract or dispose of any or all its rights and/or its obligations under the
Agreement or any part thereof to any entity.
21.5 Axiom shall have the right to subcontract its obligations under the Agreement.
21.6 If any clause or part of the Agreement is found by any court, tribunal,
administrative body or authority of competent jurisdiction to be illegal, invalid or
unenforceable then that provision shall, to the extent required, be severed from the
Agreement and shall be ineffective without, as far as is possible, modifying any other
clause or part of the Agreement and this shall not affect any other provisions of the
Agreement which shall remain in full force and effect.
21.7 All payments to be made by Customer to Axiom under the Agreement shall be
made in full without any set-off, restriction or condition and without any deduction or
withholding for or on account of any counterclaim or any present or future taxes,
levies, duties, charges, fees, deductions or withholdings of any nature unless the
Customer is required by law to make any such deduction or withholding.
21.8 The parties do not intend that any of its terms shall be enforceable by virtue of
the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
21.9 The formation, existence, construction, performance, and validity of the
Agreement shall be construed in accordance with the laws of England and Wales.
The courts of England and Wales shall have exclusive jurisdiction to settle any
disputes which may arise out of or in connection with the Agreement. The parties
irrevocably agree to submit to that jurisdiction except that each party may seek
injunctive relief in any court of competent jurisdiction.
