Software as a service subscription agreement

BACKGROUND

(A)    The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of sharing, buying, selling, and exploring the world of art.

(B)    The Customer wishes to use the Supplier’s service in its business operations.

(C)    The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s service subject to the terms and conditions of this Agreement.

Agreed Terms

1.    Interpretation

1.1    The definitions and rules of interpretation in this clause apply in this Agreement.

1.2    Clause, Schedule, and paragraph headings shall not affect the interpretation of this Agreement

1.3    A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors, or permitted assigns.

1.4    A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.

1.5    Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6    Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7    A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.8    A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.9    A reference to writing or written includes email.

1.10    Except where a contrary intention appears, a reference to a clause, schedule, or annex is a reference to a clause of, or schedule or annex to, this Agreement.

1.11    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.

1.12    The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.  Any reference to this Agreement includes the Schedules.

1.13    If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

2.    User Subscriptions

2.1    Subject to the Customer purchasing the User Subscriptions in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2    In relation to the Authorised Users, the Customer undertakes that:

(a)    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;

(b)    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;

(c)    each Authorised User shall keep a secure password for their use of the Services and Documentation, that each Authorised User shall keep their password confidential, and that it remains the sole responsibility of each Authorised User to regularly update their password to ensure the security of access to the Services;

(d)    it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within five (5) Business Days of the Supplier’s written request at any time or times;

(e)    it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement.  Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(f)    if any of the audits referred to in Clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

(g)    if any of the audits referred to in Clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within ten (10) Business Days of the relevant audit.

2.3    The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the 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 the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.4    The Customer shall not:

(a)    except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

(i)    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 means; or

(ii)    attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software; or

(b)    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

(c)    use the Services and/or Documentation to provide services to third parties; or

(d)    subject to Clause 22.1, 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

(e)    attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2; or

(f)    introduce or permit the introduction of, any Virus into the Supplier’s network and information systems.

2.5    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 the Supplier.

2.6    The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3.    Additional User Subscriptions

3.1    Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

3.2    If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing.  The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.  Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 10 working days of its approval of the Customer’s request.

3.3    If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within thirty (30) days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4.    Services

4.1    The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

4.2    The Supplier shall use commercially reasonable endeavours to make the Services available twenty-four hours a day, seven days a week, except for:

(a)    occasional planned maintenance carried out during the general maintenance window of midnight (12.00 am) to 4.00 am UK time; and

(b)    unscheduled or emergency maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 4 Normal Business Hours’ notice in advance.

4.3    The Supplier will, as part of the Services and in consideration of the support fees set out in Schedule 1, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided.  The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.

5.    Data Protection

5.1    Both parties will comply with all applicable requirements of the Data Protection Legislation.  This Clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

5.2    The parties acknowledge that if the Customer processes any personal data on the Supplier’s behalf when performing its obligations under this Agreement, the Supplier is the data controller and the Customer is the data processor for the purposes of the Data Protection Legislation.

5.3    Without prejudice to the generality of Clause 5.1, the Supplier will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Customer for the duration and purposes of this Agreement so that the Customer may lawfully use, process and transfer the personal data in accordance with this Agreement on the Supplier’s behalf.

5.4    Without prejudice to the generality of Clause 5.1, the Customer shall, in relation to any personal data processed in connection with the performance by the Customer of its obligations under this Agreement:

(a)    process that personal data only on the documented written instructions of the Supplier unless the Customer is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Customer and/or Domestic UK Law (where “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (“Applicable Laws”).  Where the Customer is relying on Applicable Laws as the basis for processing personal data, the Customer shall promptly notify the Supplier of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Customer from so notifying the Supplier;

(b)    ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

(c)    not transfer any personal data outside of the EEA unless the following conditions are fulfilled:

(i)    the Supplier or the Customer has provided appropriate safeguards in relation to the transfer;

(ii)    the data subject has enforceable rights and effective legal remedies;

(iii)    the Customer complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)    the Customer complies with reasonable instructions notified to it in advance by the Supplier with respect to the processing of the personal data;

(d)    assist the Supplier, at the Supplier’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;

(e)    notify the Supplier without undue delay and in any event within twenty-four (24) hours on becoming aware of a personal data breach;

(f)    at the written direction of the Supplier, delete or return personal data and copies thereof to the Supplier on termination of the Agreement unless required by Applicable Law to store the personal data;

(g)    maintain complete and accurate records and information to demonstrate its compliance with this Clause 5 and allow for audits by the Supplier or the Supplier’s designated auditor and immediately inform the Supplier if, in the opinion of the Customer, an instruction infringes the Data Protection Legislation; and

(h)    indemnify the Supplier against any loss or damage suffered by the Supplier in relation to any breach by the Customer of its obligations under this Clause 5.

5.5    The Supplier does not consent to the Customer appointing any third-party processor of personal data under this Agreement.

5.6    Either party may, at any time on not less than thirty (30) days’ notice, revise this Clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

5.7    Without prejudice to the generality of Clause 5.1, the Customer shall take reasonable precautions to preserve the integrity of any data which it processes and to prevent any corruption or loss of such data.

6.    Third Party Providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.  The Supplier makes no representation, warranty, 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 the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier.  The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.  The Supplier 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.    Supplier’s Obligations

7.1    The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2    The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.  If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.  Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1.

7.3    The Supplier:

(a)    does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; and

(b)    is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

7.4    This Agreement shall not prevent the Supplier 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 this Agreement.

7.5    The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7.6    The Supplier shall follow its archiving procedures for Customer Data as set out in its data protection policies and procedures.  In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its data protection policies and procedures.  The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

8.    Customer’s Obligations

8.1    The Customer shall:

(a)    provide the Supplier with:

(i)    all necessary co-operation in relation to this Agreement; and

(ii)    all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(b)    without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

(c)    carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.  In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d)    ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

(e)    obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors, and agents to perform their obligations under this Agreement, including without limitation the Services;

(f)    ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

(g)    be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing 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 Customer’s network connections or telecommunications links or caused by the internet.

8.2    The Customer shall own all right, title, and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

9.    Charges and Payment

9.1    The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this Clause 9 and Schedule 1 and the support fees in accordance with Clause 4.3 and Schedule 1.

9.2    The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date, and complete contact and billing details and, if the Customer provides:

(a)    its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:

(i)    on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii)    subject to Clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

(b)    its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:

(i)    on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii)    subject to Clause 14.1, at least thirty (30) days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within thirty (30) days after the date of such invoice.

9.3    If the Supplier has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a)    the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b)    interest shall accrue on a daily basis on such due amounts at an annual rate equal to three percent (3%) over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4    All amounts and fees stated or referred to in this Agreement

(a)    shall be payable in pounds sterling (GBP);

(b)    are, subject to Clause 13.3(b), non-cancellable and non-refundable;

(c)    are inclusive of value added tax, which will be detailed on to the Supplier’s invoice(s) at the appropriate rate.

9.5    If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation considered as fair use, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees.

9.6    The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 3.3, the support fees payable pursuant to Clause 4.3, and/or the excess storage fees payable pursuant to Clause 9.5 at the start of each Renewal Period upon ninety (90) days’ prior notice to the Customer and shall be deemed to have been amended accordingly.

10.    Proprietary Rights

10.1    The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation.  Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights in respect of the Services or the Documentation.

10.2    The Supplier confirms that it has all the Intellectual Property Rights in relation to the Services and the Documentation that are necessary to grant all the Intellectual Property Rights it purports to grant under, and in accordance with, the terms of this Agreement.

11.    Confidentiality

11.1    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.  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; or

(d)    is independently developed by the receiving party, which independent development can be shown by written evidence.

11.2    Subject to Clause 11.4, each party shall hold the other’s Confidential Information in confidence and 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 this Agreement.

11.3    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 this Agreement.

11.4    A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5    The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

11.6    The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7    No party shall make, or permit any person to make, any public announcement concerning details, such as specific clauses and commercial terms, of this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

11.8    The above provisions in this Clause 11 shall survive termination of this Agreement, howsoever arising.

11.9    In performing its obligations under this Agreement the Customer shall comply with the Mandatory Policies.

12.    Indemnity

12.1    The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:

(a)    the Customer is given prompt notice of any such claim;

(b)    the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

(c)    the Customer is given sole authority to defend or settle the claim.

12.2    The Supplier shall defend the Customer, its officers, directors, and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right, or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a)    the Supplier is given prompt notice of any such claim;

(b)    the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and 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.

12.3    In the defence or settlement of any claim, the Supplier may procure the right for the Customer 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 this agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4    In no event shall the Supplier, its employees, agents, and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a)    a modification of the Services or Documentation by anyone other than the Supplier;

(b)    the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c)    the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

12.5    The foregoing states the Customer’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 patent, copyright, trademark, database right, or right of confidentiality.

13.    Limitation of Liability

13.1    Except as expressly and specifically provided in this Agreement:

(a)    the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

(b)    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 this Agreement; and

(c)    the Services and the Documentation are provided to the Customer on an “as is” basis.

13.2    Nothing in this Agreement excludes the liability of the Supplier:

(a)    for death or personal injury caused by the Supplier’s negligence; or

(b)    for fraud or fraudulent misrepresentation.

13.3    Subject to Clause 13.1 and Clause 13.2:

(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 this Agreement; and

(b)    the Supplier’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the lesser of either £5000 or the total Subscription Fees paid for the User Subscriptions during the twelve (12) months immediately preceding the date on which the claim arose.

13.4    Nothing in this Agreement excludes the liability of the Customer for any breach, infringement, or misappropriation of the Supplier’s Intellectual Property Rights.

14.    Termination

14.1    This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of one (1) month (each a “Renewal Period”), unless:

(a)    either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b)    otherwise terminated in accordance with the provisions of this Agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

14.2    Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:

(a)    the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than sixty (60) days after being notified in writing to make such payment;

(b)    the Customer commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;

(c)    the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

(d)    the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(e)    the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; and

(f)    the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

14.3    Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under this Agreement or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Clause 14.2(b) to Clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

14.4    On termination of this Agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

14.5    On termination of this Agreement for any reason:

(a)    all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

(b)    each party shall return and make no further use of any equipment, property, Documentation, and other items (and all copies of them) belonging to the other party;

(c)    the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.4, unless the Supplier receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.

14.6    Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

15.    Force Majeure

The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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 (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, pandemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16.    Conflict

If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

17.    Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18.    Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.

19.    Rights and Remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20.    Severance

20.1    If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

20.2    If any provision or part-provision of this Agreement is deemed deleted under clause

20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

21.    Entire Agreement

21.1    This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

21.2    Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement.

21.3    Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

21.4    Nothing in this clause shall limit or exclude any liability for fraud.

22.    Assignment

22.1    The Customer 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 this Agreement.

22.2    The Supplier may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement.

23.    No Partnership or Agency

Nothing in this Agreement 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).

24.    Third Party Rights

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25.    Counterparts

25.1    This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

25.2    Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG, or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this Agreement.  If method of transmission is adopted, without prejudice to the validity of the Agreement thus made, each party shall on request provide the other with the “wet ink” hard copy original of their counterpart.

25.3    No counterpart shall be effective until each party has provided to the others at least one executed counterpart.

26.    Notices

26.1    Any notice required to be given under this Agreement 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 this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in this Agreement.

26.2    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed confirmation obtained by the sender).

27.    Governing Law

This Agreement 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.

28.    Jurisdiction

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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 – Fees

1.    Subscription Fees

1.1    The Subscription Fees are agreed in writing between the Customer and the Supplier.

1.2    The Supplier reserves the right to adjust the Subscription Fees with effect from 1 January of each year to reflect increases or decreases in the cost of Services indicated by the percentage increase or decrease in the Consumer Prices Index during the previous year. The Supplier shall give the Customer not less than one (1) month’s prior notice in writing of proposed changes. If the Customer objects to a proposed adjustment, it most be notified in writing and submitted to the Supplier within one week of the new rate coming into effect.

1.3    Pending determination of a proposed adjustment to the Subscription Fees, the Subscription Fees then in force shall continue to apply. Any adjusted Subscription Fees shall be deemed to apply with effect from 1 January. Within one (1) month of the appropriate adjustment being determined, the Customer shall pay the Supplier any outstanding sums due in respect of its purchases of Services since 1 January of the relevant year, together with any applicable VAT, or the Supplier shall refund the Customer for any excess amounts paid on Services purchased since the relevant date, and shall repay any VAT due to be repaid, as appropriate.

1.4    Subscription Fees are accrued monthly, with a pro rata adjustment for the first month of Services, for any Effective Date that is not the 1st of the month.

2.    Additional User Subscription Fees

Additional User Subscriptions may be purchased by the Customer in accordance with Clause 3, with a charge applicable to be determined in writing separately between the parties.

3.    Excess Storage Fees

At present, the Supplier does not impose an excess storage fee, but reserves the right to implement such fees, and associated terms, should the Customer’s usage of the Services be deemed to exceed fair use, as determined by the sole discretion of the Supplier. 

4.    Support Fees

The Supplier’s standard and enhanced support fees are detailed separately in a written Support Agreement to be made bespoke to the Customer’s needs. 

5.    Sales Commission Fees

The Supplier’s Services include access to an online marketplace and other digital tools as detailed in the Documentation for the advertisement and sale of the Customer’s goods and services to the Supplier’s Consumer Users. The use, and associated terms, of such features are defined and agreed separately in the Supplier’s Seller Terms. Any sales of the Customer’s goods and services to Consumer Users that have been facilitated through the use of the Supplier’s Services, as detailed in the Supplier’s general Terms and Conditions as well as Seller Terms, will incur the Sales Commission Fees. The Sales Commission Fees are set at 10% of the Sales Price as determined by the Customer, unless otherwise confirmed in writing by the Supplier. 

6.    Supplementary Service Fees

The Supplier provides a range of supplementary services beyond the Services of this Agreement. The associated fees and usage terms of such services are communicated and agreed in writing separately in the document titled “Artscapy Supplementary Services Terms”.  

The above listed fees shall constitute the total Fees payable by the Customer to the Supplier according to the payment terms as detailed in Clause 9.

Schedule 2 – Subscription Term

1.    Initial Subscription Term: Six (6) calendar months from the Effective Date.

2.    Renewal Period: One (1) month, automatically renewing unless the Agreement is terminated in line with Clause 14.

The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

Schedule 3 – Mandatory Policies

The Mandatory Policies, available on request, are:

• Modern Slavery and Human Trafficking Policy

• Corporate and Social Responsibility Policy

• Data and Privacy Policy

• Ethics and Anti-Bribery Policy

• Expenses Policy

• Cybersecurity Policy

• Business Continuity and Disaster Recovery