1.1 The definitions and rules of interpretation in this clause 1 apply in the Contract:
“Atheon Analytics” means Atheon Analytics Limited a company incorporated in England, with registration number 05448507 and whose registered office address is principal place of business is at Brick House, 150A Station Road, Woburn Sands, Milton Keynes MK17 8SG and a reference to “Us”, “We” or “Our” is a reference to Atheon Analytics;
“Authorised Users” means those of Your employees, agents and independent contractors who are authorised by You to use the Services by You creating accounts for such users in order for them to access and use the Services;
“Beta Service” has the meaning given to it in Part 4;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Commencement Date” means the date on which You confirm Your acceptance of these terms, whether by indicating acceptance via the Website, signature of the Order Acknowledgement or otherwise;
“Confidential Information” means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of either party for the time being confidential to the relevant party and trade secrets including, without limitation, technical data and know-how relating to the business of either party or any of its suppliers, clients, customers, agents, distributors, shareholders or management, whether or not such information (if in anything other than oral form) is marked confidential;
“Contract” means the contract between Atheon Analytics and You for the provision to You of the Services, such Contract comprising these terms and conditions and any Order Acknowledgement and excluding all other terms and conditions;
“Effective Date” means the date the Services are first made available to You;
“Fees” means the fees payable by You to Atheon Analytics for the Services, being the fees as published on the Website, or if an Order Acknowledgement is issued, then the fees specified in the Order Acknowledgement;
“Free Service” has the meaning given in Part 2;
“Good Industry Practice” means the standard of skill, care, knowledge, and foresight which would reasonably and ordinarily be expected from an experienced person engaged in the provision of hosted services of the kind provided pursuant to the Contract;
“Initial Term” means twelve months from the date of first invoice by Atheon Analytics for the Fees;
“Normal Business Hours” means 9.00 am to 6.00 pm UK time, each Business Day;
“Order Acknowledgement” means any acknowledgement of order issued by Atheon Analytics to which these terms may be attached;
“Premium Services” has the meaning given in Part 3;
“Quarter” means a period of one quarter, i.e. three months measured from the first day of the
Initial Term or from the end of the preceding such quarter;
“Renewal Period” means the period described in clause 15.9 (Part 3);
“Retailer” means any organisation which sells Your products on Your behalf and provides You with access to Third Party Data;
“Services” means the services provided by Atheon Analytics to You under the Contract via the Website which may be either Free Services or Premium Services;
“Software” means the online software applications provided by Atheon Analytics as part of the Services and includes (without limitation) the software developed by Atheon Analytics or its third party licensees and comprised in its SKUtrak system and all updates, upgrades, modifications, releases and versions thereof, including:
“Term” has the meaning given in clause 14.3 (Part 2) as applicable to the Free Service or clause 15.9 (Part 3) as applicable to the Premium Service;
“Third Party Data” means data generated by the Retailers which is collected by Atheon Analytics on Your behalf for the purpose of providing the Services to You or facilitating Your use of the Services;
“Virus” means any thing 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;
“Website” means Atheon Analytics’ website at skutrak.com or any sub-domain thereof or any other website as notified to You by Atheon Analytics from time to time;
“You” or “Your” means the organisation receiving the Services under the Contract;
“Your Data” means the data generated by You which is collected by Atheon Analytics for the purpose of providing the Services to You or facilitating Your use of the Services.
1.2 In the Contract clause, schedule and paragraph headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 The Contract shall be binding on, and enure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or reenacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to “writing” or “written” includes fax but not email.
1.8 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
1.9 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Contract between You and Us shall include:
2.1.1 any special terms set out in the Order Acknowledgement; and
2.1.2 all of the terms and conditions set out in Part 1 (General Terms); and
2.1.3 where You are using Our Free Service, all of the terms and conditions set out in Part 2 (Free Terms); or
2.1.4 where You are using Our Premium Service, all of the terms and conditions set out in Part 3 (Premium Terms).
2.2 Subject to Your compliance with the conditions set out in clause 2.3, Atheon Analytics shall grant to You a non-exclusive, non-transferable licence to permit the Authorised Users to use the Services during the Term solely for Your internal business operations. This licence does not permit further sub-licensing without Atheon Analytics’ prior written consent.
2.3 The conditions referred to in clause 2.2 are:
2.3.1 signature by Atheon Analytics and You of the Order Acknowledgement or Your indication of Your acceptance of these terms via the Website; and
2.3.2 Your compliance with the restrictions set out in these terms and conditions.
2.4 If there is a conflict or inconsistency between some or all of the documents which make up the Contract, the Order Acknowledgment shall prevail over these terms and conditions.
2.5 The licence in clause 2.2 does not permit You to allow any other holding or subsidiary companies to access, use or benefit from the Services.
2.6 You shall not, and shall procure that Your Authorised Users, staff and representatives do not store, distribute or transmit:
2.6.1 any Viruses to the Software or any of Atheon Analytics’ systems; or
2.6.2 any material during the course of Your use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or which is likely to cause damage or injury to any person or property.
Atheon Analytics reserves the right, without liability to You, to disable Your access to any part or all of the Services that breaches the provisions of this clause 2.6.
2.7 You shall not, 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 by the Contract:
2.7.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2.7.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.7.3 access all or any part of the Services and/or the Software in order to build a product or service using the information obtained from the Services and/or the Software which competes with the Services; or
2.7.4 subject to any permitted licencing as stated in the Contract, use the Services to provide services to third parties; or
2.7.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise
commercially exploit, or otherwise make the Services available to any third party except to the extent permitted under the Contract to the Authorised Users; or
2.7.6 attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this clause 2.
2.8 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, You shall promptly notify Atheon Analytics and shall indemnify Atheon Analytics against all claims, damages, losses, costs, liabilities and expenses which Atheon Analytics may suffer or incur as a result of any unauthorised access or use that is due to Your actions or omissions.
3.1 Atheon Analytics shall, during the Term, provide the Services to You on and subject to the terms of the Contract. You will provide Your Data to Us throughout the Term to enable Us to provide the Services.
3.2 We act as Your agent regarding the collection of Third Party Data to enable us to provide the Services. By entering into this Contract, You instruct Us to access the relevant Retailer’s system(s) and extract Third Party Data on Your behalf.
3.3 We will, subject to clause 5, host Your Data and/or Third Party Data and use the Software to analyse Your Data and/or Third Party Data in order to provide the Services to You.
3.4 Atheon Analytics shall use commercially reasonable endeavours to make the Services available twenty-four hours a day, seven days a week except for:
3.4.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
3.4.2 unscheduled maintenance performed outside Normal Business Hours or for emergency maintenance (which may be carried out at anytime) provided that Atheon Analytics will use reasonable endeavours to give You as much advance notice as is reasonably practicable in the case of unscheduled maintenance.
3.5 We will, as part of the Services and at no additional cost to You, provide You during Normal Business Hours with Our standard customer support services as described in more detail on the Website. You may purchase enhanced support services separately at Our then current rates.
3.6 The Contract shall not prevent Us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
4.1 Atheon Analytics warrants that it is the owner of or authorised licensee of all rights in the Software that are necessary to grant all rights that it purports to grant under and in accordance with the terms of this Contract.
5.1 You own or are the licensor of all rights, title and interest in and to all of Your Data and/or Third Party Data and warrant that You have adequate permission to enable Us to use Your Data or Third Party Data to provide the Services.
5.2 You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
5.3 Atheon Analytics shall maintain, in accordance with Good Industry Practice, appropriate administrative, physical and technical safeguards calculated to ensure the protection of the security, confidentiality and integrity of Your Data and/or Third Party Data and shall perform a daily back-up of Your Data and/or Third Party Data in accordance with Good Industry Practice.
5.4 Without prejudice to clause 5.3, You acknowledge that We do not provide archiving or data storage or security services and accordingly Atheon Analytics shall not be responsible for any loss, destruction, alteration or disclosure of Your Data and/or Third Party Data caused by any third party (except those third parties sub-contracted by Atheon Analytics to perform services related to maintenance and back-up of Your Data and/or Third Party Data).
5.5 You warrant and undertake to Us that:
5.5.1 You own the copyright and other intellectual property in all Your Data and/or Third Party Data submitted by You for the supply of Services or are otherwise entitled to reproduce, have reproduced, manipulate or have manipulated Your Data and/or Third Party Data in the course of the Services;
5.5.2 none of Your Data will be unlawful, libellous or in any way contravene any requirement of law or code of practice or infringe the rights of any third party;
5.5.3 You have no reason to believe that any Third Party Data will be unlawful, libellous or in any way contravene any requirement of law or code of practice or infringe the rights of any third party;
5.5.4 Your Data will not contain any Virus;
5.5.5 You have no reason to believe that any Third Party Data will contain any Virus; and
5.5.6 replication, storage, conversion, transmission and other dealing by Atheon Analytics of Your Data and/or Third Party Data in the course and for the purposes of provision of the Services will not be in any respect unlawful or infringe any rights of any third party (save to the extent that such unlawful or infringing activity would not have occurred but for use of the Software in the provision of the Services).
5.6 We do not believe that Your Data and/or Third Party Data will contain any personal data (as defined in the Data Protection Act 1998). If We process any personal data on Your behalf when performing Our obligations under the Contract, You shall be the data controller and We shall be the data processor of Your Data and/or Third Party Data and in any such case:
5.6.1 You acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where You and the Authorised Users are located in order to carry out the Services and Atheon Analytics’ other obligations under the Contract;
5.6.2 You shall ensure that You are entitled to transfer the relevant personal data to Atheon Analytics so that Atheon Analytics may lawfully use, process and transfer the personal data in accordance with the Contract on Your behalf;
5.6.3 You 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;
5.6.4 Atheon Analytics shall process the personal data only in accordance with the terms of the
Contract and any lawful instructions reasonably given by You from time to time; and
5.6.5 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.
6.1 You acknowledge that the Services may from time to time enable or assist You to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that You do so solely at Your own risk.
6.2 Atheon Analytics makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by You, with any such third party.
6.4 Atheon Analytics does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7.1 You shall:
7.1.1 provide Atheon Analytics with:
in order to render the Services, including but not limited to Your Data and/or Third Party Data, security and access information;
7.1.2 comply with all applicable laws and regulations with respect to Your activities under the Contract;
7.1.3 ensure that the Authorised Users use the Services in accordance with the terms and conditions of the Contract and shall be responsible for any Authorised User’s breach of the Contract;
7.1.4 ensure that Your network and systems comply with the relevant specifications as notified to You by Atheon Analytics or as described on the Website;
7.1.5 be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to Atheon Analytics’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet; and
7.1.6 procure that Your Authorised Users shall, keep all account log in information and passwords safe and secure and not disclose them to any third party.
8.1 You acknowledge and agree that Atheon Analytics and/or its licensors own all intellectual property rights in the Software, the Services. Except as expressly stated herein, the Contract does not grant You any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software or the Services.
9.1 Each party may be given access to Confidential Information from 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:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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 implementation of the Contract.
9.3 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.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute Atheon Analytics’ Confidential Information.
9.6 Atheon Analytics acknowledges that Your Data is also Your Confidential Information.
10.1 Subject to clause 10.4, Atheon Analytics shall defend You, Your officers, directors and employees against any claim that the Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims. You shall indemnify Atheon Analytics against all claims, damages, losses, costs, charges, liabilities and expenses that We may suffer or incur:
10.1.1 as a result of a breach of or inaccuracy in any of the warranties in clause 5.5; or
10.1.2 as a result of acting upon instructions provided by You in respect of the Services, Your Data and/or Third Party Data. In particular, You acknowledge that We are acting as Your agent and so if any claim or allegation is made against Us by a Retailer as a direct or indirect result of Your instruction to Us to provide the Services to You and to access Third Party Data, You will indemnify Us for all claims, damages, losses, costs, liabilities and expenses that We may suffer in this regard.
10.2 A party seeking the benefit of an indemnity shall:
10.2.1 give the indemnifying party prompt notice of any relevant claim;
10.2.2 provide reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party’s expense; and
10.2.3 the indemnifying party is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim the subject of its indemnity in clause 10.1, Atheon Analytics may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on fourteen (14) days’ notice to You without any additional liability or obligation to pay liquidated damages or other additional costs to You other than to refund to You on a pro rata basis any pre-paid Fees for Services not provided by the date of termination.
10.4 In no event shall Atheon Analytics, its employees, agents and sub-contractors be liable to You under clause 10.1 to the extent that the alleged infringement is based on:
10.4.1 a modification of the Services by anyone other than Atheon Analytics; or
10.4.2 Your use of the Services in a manner contrary to the instructions given to You by Atheon Analytics; or
10.4.3 Your use of the Services after notice of the alleged or actual infringement from Atheon Analytics or any appropriate authority.
10.5 This clause 10 states Your sole and exclusive rights and remedies, and Atheon Analytics’ (including Atheon Analytics’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11.1 Nothing in the Contract shall exclude the liability of Atheon Analytics:
11.1.1 for death or personal injury caused by Atheon Analytics’ negligence; or
11.1.2 for fraud or fraudulent misrepresentation; or
11.1.3 for any other liability which may not be limited or excluded by law.
11.2 Subject to clause 11.1 and except as expressly and specifically provided in the Contract:
11.2.1 You assume sole responsibility for results obtained from the use of the Services by You, and for conclusions drawn from such use;
11.2.2 Atheon Analytics shall have no liability for any damage caused by mistakes, defects, Viruses, poor quality, omissions or inaccuracies in Your Data and/or Third Party Data or in any information, instructions or scripts provided to Atheon Analytics by You in connection with the Services or from reproduction by Atheon Analytics in the course of provision of the Services of such mistakes, defects, Viruses, poor quality, omissions or inaccuracies, all of which will be for Your sole account and You shall indemnify Atheon Analytics against the same, or for any actions taken by Atheon Analytics at Your direction;
11.2.3 Atheon Analytics shall have no liability to You for any failure to perform, or delay in performing, any Services which is caused or contributed to by a breach by You of Your obligations under the Contract and unless otherwise agreed in writing Atheon Analytics shall be entitled to rely on all of Your Data and/or Third Party Data, information and materials provided by You without verifying the same;
11.2.4 any services not expressly described in the Contract including without limitation any consultancy services or any modification or development of the Services after the Effective Date shall be provided subject to Atheon Analytics’ agreement at its then current rates for such services and shall be governed by Atheon Analytics’ terms for provision of such services; and
11.2.5 all other 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 the Contract.
11.3 Subject to clause 11.1, Atheon Analytics shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
11.3.1 loss of profits, or business; or
11.3.2 depletion of goodwill; or
11.3.3 loss of use of any asset; or
11.3.4 pure economic loss; or
11.3.5 any loss from which procedures and precautions that would generally be implemented by a person exercising a degree of skill, diligence, prudence and foresight, would reasonably and ordinarily be expected from a reasonably and appropriately skilled and experienced person in the same or similar circumstances could have prevented or reduced; or
11.3.6 any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract.
11.4 Subject to clause 11.1, Atheon Analytics’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall not exceed a sum equal to 150% of the total Fees paid by You during the twelve (12) months immediately preceding the date on which the claim arose.
11.5 Subject to clause 11.1, Atheon Analytics shall have no liability to You under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, 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 illness or default of suppliers or sub-contractors which is caused by an event of a kind described in this clause.
12.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
12.1.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach; or
12.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
12.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
12.1.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
12.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
12.1.6 the other party ceases, or threatens to cease, to trade; or
12.1.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
12.2 On termination of the Contract for any reason:
12.2.1 all licences granted under the Contract shall immediately terminate, Atheon Analytics will terminate access to, and You will cease all use of, the Services;
12.2.2 You shall return and make no further use of any documentation provided to You by Atheon Analytics pursuant to the Contract (and all copies of the same);
12.2.3 Atheon Analytics may destroy or otherwise dispose of any of Your Data and/or Third Party Data in its possession;
12.2.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and
12.2.5 clauses 1, 2.7, 2.8, 5.5, 7, 8, 9, 11, 13.1 to 13.11 and 15.12.2 shall continue to have effect notwithstanding termination for any reason.
13.1 Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract, or such other address as may have been notified by that party for such purposes.
13.2 Failure to exercise, or any delay in exercising, any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
13.3 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law or other rights available under the Contract.
13.4 If any provision (or part of a provision) of the Contract 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.
13.5 The Contract constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
13.6 Each of the parties acknowledges and agrees that in entering into the Contract 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 the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in these terms.
13.7 No variation of the Contract shall be effective unless in writing signed by authorised signatories of the respective parties.
13.8 Neither party shall, without the prior written consent of the other party (not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under the Contract.
13.9 Atheon Analytics act as Your agent for the performance of the Services. Except as expressly stated, nothing in the Contract 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).
13.10 The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.11 Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England and the parties irrevocably agree that the courts of England 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).
14.1 This Part 2 shall apply in addition to Part 1 and only where You have agreed to Our no-charge Service (“Free Service”). Part 3 shall not apply where You are using Free Services.
14.2 You acknowledge that, as the Free Services are provided to You free of charge, the Service is provided “as is” and Atheon Analytics makes no representations or warranties (whether express or implied) in respect those Services. We are not responsible for any loss, liability or damage that You suffer in reliance on any output produced by the Service or loss of Your Data and/or Third Party Data.
14.3 The Contract shall commence on the Commencement Date and shall continue for the period in which You use the Free Service until terminated in accordance with clause 14.4. The period in which You use the Free Service shall constitute the “Term” for the Free Service.
14.4 Atheon Analytics may at any time terminate the Contract by notice in writing to You without liability.
15.1 This Part 3 shall apply in addition to Part 1 and only where You have agreed to purchase Our paid for Service (“Premium Service”). Part 2 shall not apply where You are purchasing Premium Services.
15.2 We warrant that the Premium Services will be performed with reasonable skill and care and in accordance with applicable laws and that the functionality of the Premium Services will not, subject to clauses 3.4.1 and 3.4.2 (Part 1) be materially decreased during the continuance of the Contract.
15.3 The warranty at clause 15.2 shall not apply to the extent of any non-conformance which is caused by Your breach of any provision of the Contract, or use of the Services contrary to Our instructions, or modification or alteration of the Software and/or Services by any party other than Us or Our duly authorised contractors or agents.
15.4.1 do not warrant that Your use of the Services will be uninterrupted or error-free; nor that the Services and/or the information obtained by You through the Services will meet Your requirements; and
15.4.2 are 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 You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
15.5 You shall promptly notify Us in writing if, in Your reasonable opinion, the Services do not conform with the warranty in clause 15.2. Within 7 days of You notifying Atheon Analytics of such non-conformance, We shall, acting reasonably, either confirm that the Services do not conform with that undertaking (in which case clause 15.6 will apply) or request further information from You regarding the alleged non-conformance.
15.6 In accordance with clause 15.5, if We agree that the Services do not conform to the warranty in clause 15.2, We will, at Our expense and option, use all reasonable commercial endeavours:
15.6.1 to promptly correct any such non-conformance; or
15.6.2 provide You with an alternative means of accomplishing the desired performance.
15.7 If We are unable to comply with Our obligations in clauses 15.6.1 and 15.6.2 within 28 days of Us confirming the non-conformance to You in accordance with clause 15.5, either party shall have the right to terminate the Contract immediately on written notice.
15.8 Without prejudice to clause 5.3 (Part 1) You acknowledge that We do not provide archiving or data storage or security services and accordingly in the event of any loss or damage to Your Data and/or Third Party Data, Atheon Analytics shall in full settlement and satisfaction of its liability to You for such loss, use reasonable commercial endeavours to restore such of Your Data and/or Third Party Data which has been lost or damaged, from the latest back-up of such of Your Data and/or Third Party Data maintained by Atheon Analytics in accordance with clause 5.3 (Part 1).
15.9 The Contract shall, unless otherwise terminated as provided in clause 12 (Part 1) commence on the
Commencement Date and shall continue for the duration of the Initial Term and, thereafter, the Contract shall be automatically renewed for successive periods of twelve (12) months (each a “Renewal Period”), unless:
15.9.1 either party gives the other party sixty (60) days’ written notice expiring at the end of the Initial Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
15.9.2 is otherwise terminated in accordance with the provisions of the Contract,
and the Initial Term together with any subsequent Renewal Periods shall constitute the “Term” for the Premium Service.
15.10 You shall pay the Fees to Atheon Analytics.
15.11 The Fees shall be paid by You each Quarter in advance unless agreed otherwise by Atheon Analytics and You. You shall pay Atheon Analytics’ invoice within thirty (30) days after the date of such invoice.
15.12 If Atheon Analytics has not received payment within thirty (30) days after the due date for payment of any invoice then without prejudice to any other rights and remedies of Atheon Analytics:
15.12.1 Atheon Analytics may, without liability to You, disable Your passwords, account and access to all or part of the Services and Atheon Analytics shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
15.12.2 interest shall accrue on such due amounts at an annual rate equal to the rate applicable pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, commencing on the due date and continuing until fully paid, whether before or after judgment.
15.13 All amounts and fees stated or referred to in the Contract:
15.13.1 shall be payable in pounds sterling;
15.13.2 are, subject to clause 10.3 (Part 1) non-cancellable and non-refundable; and
15.13.3 are exclusive of value added tax, which shall be added to Atheon Analytics’ invoice(s) at the appropriate rate.
15.14 Atheon Analytics shall be entitled to increase the Fees at the start of each Renewal Period upon ninety (90) days’ prior notice to You.
16.1 Atheon Analytics may from time to time, but shall not be under an obligation to, offer to provide to You a Service which is clearly designated as beta, pilot, non-production or by a similar description (“Beta Service”). You are under no obligation to use a Beta Service, but if You do then You acknowledge that a Beta Service is a no-charge Service intended for evaluation or testing purposes and not for production use. Therefore, any Beta Service will be deemed to be a type of Free
Service and the terms of Parts 1 and 2 apply equally to Beta Services in addition to this Part 4. Part 3 shall not apply where You are using Beta Services.
16.2 During the provision by Us of any Beta Service which You elect to use, You shall use reasonable endeavours to provide suggestions, recommendations or other feedback (“Feedback”) and You grant to Us a worldwide, perpetual, irrevocable, royalty-free licence to use the Feedback to incorporate all or part of it into on going or future services or products provided by Atheon Analytics from time to time.
16.3 Without prejudice to clause 14.4, Atheon Analytics reserves the right at any time without liability to You to:
16.3.1 discontinue all or part of the Beta Service;
16.3.2 disable Authorised Users’ access to all or part of the Beta Service; or
16.3.3 convert the Beta Service into a Premium Service at which point You will no longer receive this service unless You agree to enter into a new Contract for the provision of the applicable Premium Service in accordance with these terms and conditions.
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