Dashboard Terms of Service
1. Intepretation
1.1 In these TOS unless the context otherwise requires:
Authorised Users means those employees of the Client who are authorised to access and use the Dashboard;
Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or would be regarded by a reasonable businessperson as being confidential, as well as information identified as Confidential Information in clause 10.3;
Client means the legal person purchasing access to the Dashboard Services as specified in the Framework Agreement or Statement of Work (as applicable);
Client Data means the data inputted by the Client, Authorised Users, or the Supplier on the Client’s behalf for the purpose of using the Dashboard Services or facilitating the Client’s use of the Dashboard Services;
Dashboard means the online software application provided and made accessible by the Supplier for the performance and use of the Dashboard Services;
Dashboard Services means the Dashboard subscription services provided by the Supplier to the Client under these TOS, as more particularly described in the Statement of Work;
Data Protection Legislation means all applicable laws and regulations from time to time in force relating to the protection of personal information, including the Data Protection Act 2018, the General Data Protection Regulation (Regulation EU 2016/679) GDPR as transposed into UK law pursuant to the European Union (Withdrawal) Act 2018 (“UK GDPR”) and any laws substituting, re-enacting or replacing any of the foregoing, as amended or updated from time to time;
Effective Date: the date on which the Client is given access to the Dashboard;
Framework Agreement means a service framework agreement entered into between the parties and under which a Statement of Work is entered into for the provision of the Dashboard;
Initial Subscription Term means twelve (12) months or such other term defined in the Statement of Work;
Service Charges means the fees payable for the Dashboard Services as per a Statement of Work;
Statement of Work means the Statement of Work prepared by the Supplier for the Client, in each case setting out the Dashboard Services, number and type of Authorised Users, Service Charges (where applicable), Initial Subscription Term and any other relevant terms agreed by the parties;
Supplier means Modern Media Limited incorporated and registered in England and Wales with company number 07121345, whose registered office is at RunwayEast, 1 Victoria Street, Bristol BS1 6AA;
Supplier Content means any and all data and content accessible or made available via the Dashboard Services, including but not limited to the Dashboard and any documents, images, videos, downloadable files and other media (other than Client Data); and
TOS means the agreement between the parties relating to the provision and use of the Dashboard Services, incorporating these terms and conditions and, where applicable, the Statement of Work, Framework Agreement, and any further documents expressly incorporated by reference;
Virus means any thing or device 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.
1.2 Any clause headings in this TOS are included for convenience only and shall have no effect on the interpretation of this TOS.
1.3 A reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns.
1.4 A reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.5 A reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Words in the singular include the plural and vice versa.
1.7 Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
1.8 A reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.
1.9 A reference to any law or legislation is a reference to that law or legislation as amended, recast, replaced, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made from time to time under that legislation.
1.10 These TOS shall be deemed accepted on the parties entering into a Statement of Work referencing the Dashboard and incorporating or referencing these terms, or otherwise via online acceptance when an Authorised User accesses the Dashboard for the first time. An Authorised User accepting these terms and conditions via the Dashboard represents that it has the authority to bind the Client to these terms and conditions
1.11 Where these terms and conditions are incorporated into a Framework Agreement or Statement of Work, the incorporated version shall take precedence over the standard version accessible via the Dashboard in the event of any conflict.
2. Licence
2.1 Subject to the Client having entered into a Framework Agreement with the Supplier or purchasing the Dashboard Services on a stand-alone basis pursuant to a Statement of Work, the restrictions set out in this clause 2 and the other terms of these TOS, the Supplier hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to access and use the Dashboard and Dashboard Services from the Effective Date for the duration of these TOS.
2.2 Where the Dashboard licence is granted as an add-on pursuant to a Framework Agreement, clauses 5, 12 and clause 13.1 shall not apply. Where the Framework Agreement expires or terminates, these TOS and the provision of the Dashboard and Dashboard Services shall also terminate, unless the parties enter into a Statement of Work for the provision of the Dashboard Services on a standalone basis, in which case the foregoing clauses shall come into effect.
2.3 The Dashboard Services do not include any custom configuration work. If the Client requests any customisation, configuration or bespoke modification to be made to the Dashboard, the Supplier may agree to do so as a paid service under the terms of the Framework Agreement. Customisations are licensed to the Client on a non-exclusive basis and may be used by the Supplier for the benefit of other service users.
2.4 Whilst a Framework Agreement is in effect and Services are being supplied thereunder, the Dashboard shall include custom insights in relation to the Client Data, provided by the Supplier. These insights are not included where the Dashboard is provided on a standalone basis and any insight functionality shall be deactivated if the Framework Agreement and/or all other Services thereunder expires or terminates.
2.5 In relation to the Authorised Users, the Client agrees and undertakes that:
a) Authorised Users must be approved and granted access to the Dashboard by the Supplier;
b) Authorised Users are granted view-only access to the Dashboard and shall not have any permission to edit the Client Data as displayed within the Dashboard, or otherwise modify the functionality of the Dashboard;
c) the Client will be responsible for all acts and omissions of its Authorised Users and shall ensure that all such users comply with the terms of these TOS;
d) each Authorised User shall keep their account credentials secure and shall not share access with any other person;
e) it shall permit the Supplier to audit the Dashboard Services in order to establish the name and password of each Authorised User; and
f) if the Supplier discovers or suspects that any Authorised User access credentials have been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Supplier shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.
2.6 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Dashboard Services that:
a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
b) facilitates illegal activity;
c) depicts sexually explicit images;
d) promotes unlawful violence;
e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
f) is otherwise illegal or causes damage or injury to any person or property,
and the Supplier reserves the right, without liability or prejudice to its other rights, to disable the Client’s access to any material that breaches the provisions of this clause.
2.7 The Client shall not:
a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these TOS, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Dashboard in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Dashboard; or
b) access all or any part of the Dashboard Services in order to build a product or service which competes with the Dashboard Services; or
c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Dashboard Services, or any Supplier Content, available to any third party except the Authorised Users; or
d) attempt to obtain, or assist third parties in obtaining, access to the Dashboard Services, other than as provided under this clause 2.
2.8 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Dashboard Services. In the event of any such unauthorised access or use, the Client shall promptly notify the Supplier.
3. Dashboard Services
3.1 The Supplier shall, during the Subscription Term, use reasonable efforts to make the Dashboard Services available and to provide the Client with reasonable support in connection with its access to and use of the Dashboard. The Supplier reserves the right to suspend access to the Dashboard Services as necessary for any maintenance, updates, or upgrades, and the Supplier also reserves the right to modify, suspend or withdraw any functions and/or features available via the Dashboard from time to time.
3.2 The Client acknowledges and agrees that:
(a) where the Dashboard Services include the provision of insights generated by artificial intelligence (“AI”), the Client acknowledges and agrees that the results are generated using language models trained using a wide variety of sources and, accordingly, no conditions, warranties or representations are given by Supplier regarding the validity or non-infringement of any Intellectual Property Rights comprised in such results;
(b) due to the nature of the Dashboard Services and AI language models generally, the insights or results may not be entirely unique and other customers may receive similar outputs from the Dashboard Services; and
(c) the insights or results may not always be complete, true and/or accurate, and it is the Client’s responsibility to inspect and review such results prior to commercial use, and Supplier shall not be liable for any losses, damages or liabilities incurred by the Client arising from its failure to do so.
4. Client Data
4.1 The Dashboard Services may enable the Client to upload, access, edit and export Client Data. The Client hereby grants the Supplier a non-exclusive, limited licence to access and use such Client Data to the extent necessary for the performance of the Dashboard Services and the Supplier’s obligations under these TOS.
4.2 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
4.3 The Client is solely responsible for keeping and maintaining full copies (including back-ups) of the Client Data and the Supplier shall not be responsible for any loss, destruction, alteration, corruption or unavailability of Client Data stored within the Dashboard.
4.4 Where the Client requests a transfer of Client Data within the Dashboard, the Supplier may agree to facilitate such a transfer at the Client’s cost, calculated on a time and material basis at the Supplier’s standard rates.
5. Data Protection
5.1 For the purposes of this clause, “Controller”, “Processor”, “Data Subject”, “Personal Data” and “Processing/process” each have the meaning given in the Data Protection Legislation.
5.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and the Supplier is the Data Processor of any Personal Data comprised in the Client Data (“Client Personal Data”).
5.3 Instructions. The Supplier shall process Client Personal Data only to the extent, and in such a manner, as is necessary for the purposes of the Dashboard Services and in accordance with the Client’s written instructions from time to time and shall not process the Client Personal Data for any other purpose. If the Supplier believes that any instruction received by it from the Client is likely to infringe the Data Protection Legislation it shall promptly inform the Client and be entitled to cease to provide the relevant Dashboard Services until the parties have agreed appropriate amended instructions which are not infringing.
5.4 Security. Taking into account the state of technical development and the nature of processing, the Supplier shall ensure that it has in place appropriate technical and organisational measures to protect the Client Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure, access or processing to ensure a level of security appropriate to the risk and harm that might result from such accidental, unauthorised or unlawful destruction, loss, alteration, disclosure, access or processing of the Client Personal Data.
5.5 Sub-processing. The Supplier shall:
a) have the right to appoint sub-processors for the Processing of the Client Personal Data, provided that any sub-processor appointed pursuant to this clause shall be subject to a written contract containing materially the same obligations as under this clause 5;
b) notify the Client of any changes made to the appointment of sub-processors; and
c) remain fully liable to the Client for all the acts and omissions of each sub-processor as if they were its own.
5.6 Personnel. The Supplier shall ensure that all employees, workers and agents who have access to and/or process Client Personal Data:
a) are informed of the confidential nature of the Client Personal Data and are subject to a binding written contractual obligation to keep the Client Personal Data confidential;
b) have undertaken training relating to handling Personal Data;
c) are aware of the Supplier’s duties as well as their personal duties and obligations under the Data Protection Legislation; and
d) shall only have access to such part or parts of the Client Personal Data as is strictly necessary for performance of that person’s duties.
5.7 International transfers. The Supplier shall not transfer the Client Personal Data outside of the UK or the European Economic Area without the prior written consent of the Client.
5.8 Breach. The Supplier shall promptly inform the Client if any Client Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
5.9 Records. The Supplier shall, in accordance with the Data Protection Legislation, make available to the Client such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 5 and to demonstrate compliance with the Data Protection Legislation.
5.10 Assistance. The Supplier shall:
a) provide such information and assistance (including by taking all appropriate technical and organisational measures) as the Client may require in relation to the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Legislation); and
b) provide such information, co-operation and other assistance to the Client as the Client reasonably requires (taking into account the nature of processing and the information available to the Supplier) to ensure compliance with the Client’s obligations under Data Protection Legislation.
5.11 Deletion/return. At the end of the provision of the Dashboard Services relating to the processing of Client Personal Data, at the Client’s cost and the Client’s option, the Supplier shall either return all of the Client Personal Data to the Client or securely dispose of the Client Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to retain such Client Personal Data.
5.12 The Client warrants to the Supplier that it has all licences, consents and permissions necessary for the Supplier to process the Client Personal Data in accordance with the Data Protection Legislation and as required to deliver the Dashboard Services and the Client agrees to indemnify and keep indemnified and defend at its own expense the Supplier against all costs, claims, damages or expenses incurred by the Supplier as a result of a breach of this warranty.
6. Supplier warranties and disclaimer
6.1 The Supplier warrants that the Dashboard Services will be provided to the Client in accordance with the specifications and descriptions set out in the Statement of Work. The Supplier shall not be in breach of the warranty to the extent of any non-conformance which is caused by use of the Dashboard Services contrary to the Supplier’s instructions, or modification or alteration of the Dashboard Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. Subject to the foregoing, if the Dashboard Services do not conform with this clause 5.1, the Supplier will use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of this warranty.
6.2 The Supplier:
a) does not warrant that the Client’s use of the Dashboard Services, including access to the Dashboard, will be uninterrupted or error-free, or that the Dashboard Services and/or the information obtained by the Client through the Dashboard Services will be accurate and up to date, and/or meet the Client’s requirements;
b) does not warrant that the Client Data exported, transferred or copied from the Client’s other services and accounts is accurate and/or will remain so, and the Supplier is not responsible for verifying the completeness, accuracy, validity, legality or integrity of any Client Data it is instructed to access, export, transfer or copy from other sources; and
c) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Dashboard Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 Except as expressly and specifically provided in these TOS:
a) the Supplier shall have no liability for any damage caused by errors or omissions in the Client Data or any information, instructions or scripts provided to the Supplier by the Client in connection with the Dashboard Services, or any actions taken by the Supplier at the Client’s direction;
b) the Client acknowledges that (i) the Dashboard Services are intended as an assistive tool and (ii) the Client is entirely responsible for reliance placed on the results or output data generated from the Dashboard, and for conclusions drawn from such use, and that it shall fully review all results for completeness, accuracy, and legal and regulatory compliance, prior to distribution or exploitation, and Supplier shall have no liability to the Client or any third party arising from the Client’s failure to do so; and
c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these TOS.
7. Client obligations
7.1 The Client shall:
a) provide the Supplier with all necessary co-operation and access to such information as may be required by the Supplier, in order to provide the Dashboard Services, including but not limited to all relevant Client Data which may be provided in exportable format, via API, or through the Supplier being granted direct access to the Client’s platform accounts (in which case the Client agrees to procure such access at the Client’s cost);
b) comply with all applicable laws and regulations with respect to its activities under these TOS;
c) carry out all other Client responsibilities set out in these TOS in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier shall not be liable for any consequent delay or non-performance of the Dashboard Services and may adjust any agreed timetable or delivery schedule as reasonably necessary;
d) where applicable, obtain and maintain all necessary licences, consents, and permissions for the Client’s access and use of the Dashboard Services in accordance with these TOS; and
e) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
8. Charges and payment
8.1 The Client shall pay the Service Charges to the Supplier in accordance with this clause 8 and the Statement of Work.
8.2 Unless otherwise stated in the Statement of Work, the Service Charges shall be payable annually in advance and the Supplier shall invoice the Client on the Effective Date and annually thereafter. The Client shall pay each invoice within the payment terms agreed in the Framework Agreement or Statement of Work (as applicable). If no payment terms are specified, payment shall be due thirty (30) days after the date of such invoice.
8.3 If the Supplier has not received payment within seven (7) days after the due date, and without prejudice to any other rights and remedies of the Supplier:
8.4 the Supplier may, without liability to the Client, disable the Client’s passwords, accounts and access to all or part of the Dashboard Services and the Supplier shall be under no obligation to provide any or all of the Dashboard Services while the invoice(s) concerned remain unpaid; and
8.5 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 Barclays Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.6 All amounts and fees stated or referred to in these TOS shall be payable in pounds sterling, are non-cancellable and non-refundable, and are exclusive of value added tax, which (if applicable) shall be added to the Supplier’s invoice(s) at the appropriate rate and payable by the Client.
9. Intellectual property rights
9.1 The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Dashboard Services, Dashboard and Supplier Content. Except as expressly stated herein, these TOS does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Dashboard Services. The Supplier grants the Client a non-exclusive, personal, royalty-free licence to access and use the Supplier Content for its internal business purposes during the Subscription Term.
10. Confidentiality
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these TOS. A party’s Confidential Information shall not be deemed to include information that:
a) is or becomes publicly known other than through any act or omission of the receiving party;
b) was in the other party’s lawful possession before the disclosure;
c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body (for the purposes of that disclosure only).
10.2 Each party shall:
a) hold the other’s Confidential Information in confidence and shall not use the other’s Confidential Information, or make it available to any third party, except to the extent necessary for the performance and implementation of these TOS.
b) 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, agents or contractors in violation of the terms of these TOS and shall be responsible for all acts and omissions of any such employees, agents or contractors.
10.3 The Client acknowledges that details of the Dashboard Services, and the results of any performance tests of the Dashboard Services, constitute the Supplier’s Confidential Information. The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
10.4 This clause 10 shall survive termination of these TOS, however arising.
11. Indemnity
11.1 The Supplier shall defend the Client, its officers, directors and employees against any claim that the software comprised in the Dashboard (excluding any third party software integrations or connections) infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
a) the Supplier is given prompt notice of any such claim;
b) the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
c) the Supplier is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the Dashboard Services, replace or modify the Dashboard Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these TOS on five (5) days’ notice to the Client.
11.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client under clause 11.1 if and to the extent that the alleged infringement is based on:
a) Client Data;
b) a modification of the Dashboard Services by anyone other than the Supplier;
c) the Client’s use of the Dashboard Services in a manner contrary to these TOS or the instructions given to the Client by the Supplier; or
d) the Client’s use of the Dashboard Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.4 The provisions of this clause 11 and clause 12 states the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any third party patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of liability
12.1 Nothing in these TOS excludes the liability of either party for:
a) death or personal injury resulting from negligence;
b) for fraud or fraudulent misrepresentation; or
c) any other liability that cannot lawfully be excluded or limited.
12.2 Subject to clause 12.1 and clause 12.2:
a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these TOS; and
b) the Supplier’s total aggregate liability in contract (including any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these TOS shall be limited to the total amounts paid or payable to the Supplier during the twelve (12) months immediately preceding the date on which the claim arose (whether under these TOS or a Framework Agreement).
13. Term and termination
13.1 These TOS shall commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, these TOS shall be automatically renewed for successive periods of twelve (12) months (each a Renewal Period), unless:
a) either party notifies the other party of termination, in writing, at least sixty (60) days before the end of the Initial Subscription Term or any Renewal Period, in which case these TOS shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
b) otherwise terminated in accordance with the provisions of these TOS,
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate these TOS and the provision of the Dashboard Services with immediate effect by giving written notice to the other party if the other:
a) is in material breach of any of the terms of these TOS and either that breach is incapable of remedy, or the other party fails to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach; or
b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
13.3 On termination of these TOS for any reason:
a) all licences granted under these TOS shall immediately and automatically terminate and the Client shall have no further access to the Dashboard, Dashboard Services and/or Supplier Content;
b) each party shall return and make no further use of any Confidential Information and other equipment, property and items (and all copies of them) belonging to the other party;
c) the Supplier may destroy or otherwise dispose of any of the Client Data in its possession; and
d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the TOS which existed at or before the date of termination shall not be affected or prejudiced.
14. General
14.1 Force majeure. The Supplier shall have no liability to the Client if it is prevented from or delayed in performing its obligations under these TOS, by any acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic or pandemic (including the Covid-19 outbreak) or default of any suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
14.2 Variation. The Supplier may vary the terms of these TOS from time to time, subject to giving written notice to the Client.
14.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under these TOS or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.4 Severance. If any provision (or part of a provision) of these TOS is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.5 Entire agreement. These TOS, together with the Framework Agreement if applicable, constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers. Each of the parties acknowledges and agrees that in entering into these TOS it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these TOS or not) relating to the subject matter of these TOS, other than as expressly set out in these TOS.
14.6 No assignment. The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these TOS.
14.7 No partnership or agency. Nothing in these TOS is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.8 Third party rights. These TOS does not confer any rights on any third party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.9 Notices. Any notice required to be given pursuant to these TOS shall be in writing, and shall be sent to the other party by first-class mail to its registered office address or by email. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered seventy-two (72) hours after posting. Emails sent to the nominated email address of the other party shall be deemed to have been delivered one (1) working day after transmission, provided no delivery failure notification is received.
14.10 Governing law and jurisdiction. These TOS and any dispute or claim 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 the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these TOS or its subject matter or formation (including non-contractual disputes or claims).