Terms of Service (API)
- The definitions and rules of interpretation in this clause apply in this licence.
- Affiliate: includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
- API: the Squirrel API application programming interface described in the Specification, and the API Documentation.
- API Call: each call from an Application via the API to interact with the Supplier Product.
- API Data: all data published or made available through the API, along with any related metadata.
- API Documentation: means the API documentation made available to Customer by Supplier from time to time, including, without limitation, via its website https://www.getsquirrel.co.
- API Key: the security key the Supplier makes available for Customer to access the API.
- API Limits: the restrictions set out in Schedule 1.
- Application: any applications developed by, or on behalf of, the Customer to interact with the API.
- Authorised Users: any users authorised by the Supplier in writing to access the API on behalf of the Customer via the API Key.
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Customer: the customer
- Customer System: the Application, together with any other network and information systems (including any hardware, software and other infrastructure) and processes operated by or on behalf of the Customer that is used to access the API, make an API Call or otherwise communicate or interact with the Supplier Product.
- Control: as defined in section 1124 of the Corporation Tax Act 2010.
- Data Protection Legislation: the UK Data Protection Legislation and any other European Union or other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
- Derived Data: data created by the Customer or an End User, now or in future, which has benefited from, derived from, relied on or made any use of, the API or API Data (including, without limitation, where the Customer or End User has created data by modifying, re-formatting, analysing or performing searches, look ups and/or enquiries using the API or API Data).
- End Users: the Authorised Users, together with any other individuals (such as the Customer's employees, users, contractors, or agents) whom the Customer enables to use or access the API.
- Effective Date: the data of this agreement.
- Fee: the licence fee payable by the Customer to the Supplier under clause 7.
- Feedback: all current and future suggestions, comments or other feedback regarding the API or API Data provided by or on behalf of the Customer.
- Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or any End User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151) and the Network and Information Systems Regulations 2018 (SI 2018/506), all as amended or updated from time to time.
- Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
- Maintenance Release: release of the API that corrects faults, adds functionality or otherwise amends or upgrades the API, but which does not constitute a New Version.
- Mandatory Policies: the Supplier's business policies and codes listed in Schedule 3, as amended by notification to the Supplier from time to time.
- New Version: any new version of the API which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
- Specification: the document detailing the specification of the API which forms ANNEX A.
- Supplier: Obsidian IO Limited (company no 12699449) having its registered office at Barberry Cottage, Watersplash Lane, Ascot SL5 7QP.
- Supplier Product: the Supplier's operating system.
- Usage Data: has the meaning given in clause 9.2.
- UK Data Protection Legislation: the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data as may be amended from time to time.
- Virus: any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program 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.
- Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
- Holding company and subsidiary mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006.
- Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
- Unless expressly stated otherwise, or the context otherwise requires:
- words in the singular shall include the plural and in the plural shall include the singular;
- A reference to a statute or statutory provision is a reference to it as [amended, extended or re-enacted from time to time;
- a reference to one gender shall include a reference to the other genders; and
- 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.
- In the case of conflict or ambiguity between any provision contained in the body of this agreement and any provision contained in the schedules, appendices or annexes, the provision in the body of this agreement shall take precedence.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
- References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
- The Schedules and Annexes 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 and Annexes.
- In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence during the term of the agreement:
- The Customer's sole means of accessing the API, for the purposes of clause 2.1, shall be via the API Key.
- In relation to the scope of use set out in clause 2.1 the Customer may
- make API Calls in excess of the API Limits;
- remove any proprietary notices from the API or API Data;
- use the API or API Data in any manner or for any purpose that infringes, misappropriates, or otherwise infringes any Intellectual Property Right or other right of any person, or that violates any applicable law;
- design or permit the Applications to disable, override, or otherwise interfere with any Supplier-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
- use the API, including in any of the Applications, to replicate or attempt to replace the user experience of the Supplier Product;
- attempt to cloak or conceal the Customer's identity or the identity of the Applications when requesting authorisation to use the API or making an API Call;
- except to the extent expressly permitted under this clause 2,
the Customer shall not (and shall ensure each End User does not):
- combine or integrate the API or API Data with any software, technology, services, or materials not approved in advance by Supplier;
- pass or allow access to the API or API Data to any third party;
- access all or any part of any the API or API Data to build a product and/or service which competes with the API or the goods or services provided by the Supplier (or any part of it); or
- commercially exploit, sell, license or distribute any API [or API Data or any products and/or services incorporating the results retrieved using the API or via an API Call.
- Except as expressly stated in this clause 2, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the API or the Supplier Product, in whole or in part (except to the extent that applicable law overrides this provision or any part hereof).
- The Customer shall not use the API or API Data other than as specified in this clause 2 without the prior written consent of the Supplier.
- Without prejudice to its other rights and remedies under this
agreement, should the Customer use the API or API Data other than as specified in this
clause 2 without the prior written consent of the Supplier, the Supplier may, in its sole
- terminate this agreement, or suspend the Customer's access and use to the API and the API Data, on written notice with immediate effect; and/or
- require the Customer to pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 7.3, from such date to the date of payment.
- The Supplier shall be entitled to suspend the Customer's access to, and use of, the API and the API Data under clause 2.6(a) until such time as the breach is remedied to the Supplier's reasonable satisfaction, which may include (where payment is required under clause 2.6(b) until the Supplier has received that payment in cleared funds from the Customer.
- Customer responsibilities
- The Customer must obtain an API Key through the registration process available at https://www.getsquirrel.co to use and access the API. The Customer may not share the API Key with any third party, must keep the API Key and all log-in information secure, and must use the API Key as the Customer's sole means of accessing the API. The API Key may be replaced at any time by the Supplier on notice to the Customer.
- The Customer shall:
- ensure that the number of End Users does not exceed the number of Authorised Users;
- without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
- carry out all of its 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;
- keep a complete and accurate record of:
- its End Users;
- its development of the Application;
- its use of the API and API Data;
- its other obligations under this agreement,
and produce such records to the Supplier on request from time to time; and
- notify the Supplier as soon as it becomes aware of any unauthorised use of the API or API Data by any person.
- Subject to clause 13.3, the Customer is responsible and liable for all uses of the API resulting from access provided by the Customer, directly or indirectly, whether such access or use is permitted by or in breach of this agreement, including use with any Application or third-party software. Without limiting the generality of the foregoing, the Customer is responsible for all acts and omissions of End Users in connection with the Application and their use of the API and API Data, if any. Any act or omission by an End User that would constitute a breach of this agreement if taken by the Customer will be deemed a breach of this agreement by the Customer. The Customer shall take reasonable efforts to make all End Users aware of this agreement's provisions as applicable to such End Users and shall cause End Users to comply with such provisions.
- The Customer shall monitor the use of the API for any activity that breaches applicable laws, rules, and regulations or any terms and conditions of this agreement, including any fraudulent, inappropriate, or potentially harmful behaviour, and promptly restrict any offending users of the Applications from further use of the Applications.
- Maintenance releases
- The Supplier shall make Maintenance Releases available to the Customer no later than such releases are generally made available to its other customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the API.
- The Customer is required to make any change to the Application that is required for integration as a result of such Maintenance Release at the Customer's sole cost and expense as soon as reasonably practicable after receipt.
- The Customer may, in its discretion, provide Feedback to the Supplier, but the Supplier shall not be obliged to take any action in response to the Feedback.
- Feedback, even if marked confidential, will not create any confidentiality obligations on the Supplier unless the Supplier has otherwise agreed in writing, signed by an authorised signatory of the Supplier.
- Without prejudice to its other rights and remedies (including under this agreement), the Supplier will be free to use, disclose, reproduce, distribute, implement in the Supplier Product or API and otherwise commercialise all Feedback provided by the Customer without obligation or restriction of any kind, and the Customer hereby waives all rights to be compensated or seek compensation for the Feedback and will ensure that any relevant moral rights are waived.
- The Supplier, or its representative, may physically or remotely monitor and audit the Customer's use of the API and the API Data to ensure the Customer is complying with the terms of this agreement, provided any physical audit shall take place on reasonable advance notice and at reasonable times. Such audit may include an audit of the Usage Data to verify the name and password of each End User.
- If the audit referred to in clause 6.1 reveals that the API or API Data has been used or accessed other than in accordance with this agreement, then, without prejudice to the Supplier's other rights, the Customer shall promptly disable such access and use and the Supplier shall be entitled to revoke any existing passwords, or not issue any new passwords, to any End User so implicated in the unauthorised use or access.
- The Customer shall keep complete and accurate records to demonstrate its compliance with the terms of this agreement, and the fulfilment of its obligations under it, including those matters set out at clause 3.2(d) and shall make such records available for inspection by the Supplier, or the Supplier's representative, as part of the audit referred to in clause 6.1.
- The Customer shall pay to the Supplier licence fees, such fees being due on the 1st of each month.
- All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
- If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier's remedies under clause 15, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- Confidentiality and publicity
- Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisers or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party.
- For the avoidance of doubt the API, the API Data and the API Key shall be considered the confidential information of the Supplier for the purposes of this agreement, save that the AP Data may be disclosed to third parties where expressly permitted by (but only in accordance with any restrictions set out in) the Release Purpose.
- The Supplier shall be entitled to reference the Customer as a user of the API in the Supplier's general marketing literature, including on the Supplier's website and other online platforms. The reference to the Customer for these purposes may include a reference to the Customer's corporate name and to any of its trade names and trade marks.
- Save as provided for in clause 8.3, no party shall make, or permit any person to make, any public announcement concerning 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.
- Data protection
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
- The parties acknowledge that the Usage Data is processed by the Supplier as a controller for the purposes of the Data Protection Legislation.
- Without prejudice to the generality of clause 9.1 the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data (including Usage Data) to the Supplier for the duration and purposes of this agreement so that the Supplier may lawfully use, process and transfer this data in accordance with this agreement; including in relation to the role outlined in clause 9.3.
- Systems and security
- The Customer:
- is responsible for the operation and security of the Customer System and the Application;
- shall ensure that the Customer System and the Application comply with any relevant specifications provided by the Supplier from time to time; and
- shall 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 the Customer System and the Application to the Supplier Product, 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.
- will take reasonable steps to:
- secure the API, the API Data, the Supplier Marks and the API Key (including all copies thereof) from infringement, misappropriation, theft, misuse of unauthorised access; and
- prevent the introduction of any Virus or Vulnerability into the supplier's network and information systems (including the Supplier Product), via the Customer's (or End User's) use of the API, the API Key or otherwise.
- The Customer:
- is required to develop the Application, and undertake API Calls, in line with the Technical Standards; and
- is required to request API Data via the API in the format specified in the Data Standards.
- The Customer:
- Export and compliance with policies
- Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
- Each party undertakes:
- contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
- if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
- In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.
- Supplier's warranties
- The Supplier undertakes that the API shall perform substantially in accordance with the Specification.
- The undertaking at clause 12.1 shall not apply to the extent of any non-conformance which is caused by use of the API contrary to the Supplier's instructions, or modification or alteration of the API by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the API does not conform with the foregoing undertaking, the 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 12.1.
- The Supplier:
- does not warrant that:
- the Customer's use of the API will be uninterrupted or error-free; or
- the API and/or the API Data obtained by the Customer through the API will meet the Customer's requirements; or
- the API or the API Data will be free from Vulnerabilities or Viruses; or
- the API or API Data will comply with any Heightened Cybersecurity Requirements.
- 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 API and API Data may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- does not warrant that:
- 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.
- 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.
- Limits of liability
- Except as expressly and specifically provided in this agreement:
- the Customer assumes sole responsibility for results obtained from the use of the API and the API Data 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 API, or any actions taken by the Supplier at the Customer's direction; and
- 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
- the API and the API Data are provided to the Customer on an "as is" basis.
- Except as expressly stated in clause 13.3:
- the Supplier shall not in any circumstances have any liability
for any losses or damages which may be suffered by the Customer (or any person
claiming under or through the Customer), whether the same are suffered directly or
indirectly or are immediate or consequential, and whether the same arise in
contract, tort (including negligence) or otherwise howsoever, which fall within any
of the following categories:
- special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
- loss of profits;
- loss of anticipated savings;
- loss of business opportunity;
- loss of goodwill;
- loss or corruption of data,
- the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
- Except as expressly and specifically provided in this agreement:
provided that this clause 13.2(a) shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of clause 13.2(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 13.2(a); and
- the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the total Fees paid during the 12 months preceding the date on which the claim arose.
- The exclusions in clause 13.1 and clause 13.2 shall apply to the
fullest extent permissible at law, but the Supplier does not exclude liability for:
- death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
- fraud or fraudulent misrepresentation;
- breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- any other liability which may not be excluded by law.
- All references to "the Supplier" in this clause 13 shall, for the purposes of this clause and clause 23 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 23.
- Intellectual property rights
- All rights, title and interest in any Derived Data and Feedback shall
vest in the Supplier on creation. The Customer hereby assigns to the Supplier absolutely
with full title guarantee all right, title and interest in and to the Derived Data and
- the entire copyright and all other rights in the nature of copyright subsisting in the Derived Data and the Feedback;
- any database right subsisting in the Derived Data and the Feedback;
- all other rights in the Derived Data and the Feedback of whatever nature, including Intellectual Property Rights, whether now known or created in the future, to which the Customer is now, or at any time after the date of this agreement may be, entitled by virtue of the laws in force in the United Kingdom and in any other part of the world;
- the absolute entitlement to any registrations granted pursuant to any of the applications comprised in the Derived Data and the Feedback;
- All rights, title and interest in any Derived Data and Feedback shall vest in the Supplier on creation. The Customer hereby assigns to the Supplier absolutely with full title guarantee all right, title and interest in and to the Derived Data and Feedback including:
in each case for the whole term including any renewals, reversions, revivals and extensions and together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these assigned rights, whether occurring before, on, or after the date of this agreement.
- All use by the Customer of the Supplier Marks, if any, will comply with any usage guidelines that the Supplier may specify from time to time. The Customer acknowledges that the Customer's use of the Supplier Marks in connection with this agreement will not create any right, title, or interest in or to the Supplier Marks in favour of the Customer and all goodwill associated with the use of the Supplier Marks will inure to the benefit of the Supplier.
- The Customer will promptly notify the Supplier if the Customer becomes aware of any infringement of any Intellectual Property Rights in the API, API Data, Derived Data, Feedback and Supplier Marks and will fully co-operate with the Supplier in any legal action taken by the Supplier to enforce the Supplier's Intellectual Property Rights.
- The Customer acknowledges that all Intellectual Property Rights in the API, API Data, Derived Data, Feedback and Supplier Marks, belong and shall belong to the Supplier [or the relevant third-party owners (as the case may be)], and the Customer shall have no rights in or to the same other than the right to use it in accordance with the terms of this agreement.
- The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the API, API Data or Supplier Marks (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 14.5 shall not apply where the Claim in question is attributable to possession or use of the API, API Data or Supplier Marks (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the API or API Data in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the API or API Data not so combined, or use of a non-current release of the API or API Data.
- If any third party makes a Claim, or notifies an intention to make a
Claim against the Customer, the Supplier's obligations under clause 14.5 are conditional on
- as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
- not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
- giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
- subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
- If any Claim is made, or in the Supplier's reasonable opinion is
likely to be made, against the Customer, the Supplier may at its sole option and expense:
- procure for the Customer the right to continue to use the API, API Data or Supplier Marks (or any part thereof) in accordance with the terms of this licence;
- modify the API, API Data or Supplier Marks so that the same ceases to be infringing;
- replace the API, API Data or Supplier Marks with non-infringing versions; or
- terminate this licence immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the API and API Data to the date of termination) on return of all copies thereof,
provided that if the Supplier modifies or replaces the API or API Data, the modified or replacement versions must comply with the warranties contained in clause 12 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.
- This clause 14 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims [and, for the avoidance of doubt, is subject to clause 13.2].
- Duration and termination
- Unless terminated earlier in accordance with its terms, this agreement shall commence on the Effective Date for an initial term of [twelve] months (the Initial Term) and shall automatically renew for subsequent twelve-month periods (each a Renewal Term) unless either party gives the other party written notice of non-renewal at least ninety calendar days before the commencement of the next Renewal Term. The Initial Term, together with each Renewal Term, shall be deemed to be the Term).
- Without affecting any other right or remedy available to it, either
party may terminate this agreement with immediate effect by giving written notice to the
other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(c) to clause 15.2(j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business or;
- the other party'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; or
- there is a change of Control of the other party.
- Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
- Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
- On termination for any reason:
- all rights granted to the Customer under this licence shall cease;
- the Customer shall cease all activities authorised by this licence;
- the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
- the Customer shall immediately delete or return to the Supplier (at the Supplier's option) all copies of the API, API Data and Derived Data and Application then in its possession, custody or control and, in the case of deletion, certify to the Supplier that it has done so.
- Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement including clause 1, clause 8, clause 9, clause 12 (except clause 12.1), clause 13, clause 15, and Schedule 1 shall remain in full force and effect.
- The Customer shall not:
- sub-license, assign or novate the benefit or burden of this agreement in whole or in part;
- allow the API or API Data or Derived Data to become the subject of any charge, lien or encumbrance; and
- deal in any other manner with any or all of its rights and obligations under this agreement,
- The Customer shall not:
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
- The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
- Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Notwithstanding clause 8 a party assigning any or all of its rights under this agreement may disclose to a proposed assignee, on a confidential basis, any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 16.4 shall be made until notice of the identity of the proposed assignee has been given to the other party.
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, unless such waiver is set out in writing and signed by the waiving party (or its authorised representative). 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.
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.
- Entire agreement
- This agreement, the schedules and the documents annexed as appendices to this agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
- Each party acknowledges that, in entering into this licence annexed to it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence or those documents.
- Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this licence.
- Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- 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.
- If any provision or part-provision of this agreement is deemed deleted under clause 21.1 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.
- 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.
- Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of this agreement. If this 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.
- No counterpart shall be effective until each party has delivered to the other at least one executed counterpart.
- Third-party rights
- The entities referred to in clause 13.4 may enforce the terms of this licence to the fullest extent permitted by law as if they were a party to this agreement, subject to and in accordance with this clause 23, this agreement and the Contracts (Rights of Third Parties) Act 1999.
- Except as provided in clause 23.1, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
- The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement.
- No partnership or agency
- Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this agreement by giving seven days' written notice to the affected party.
- Any notice given to a party under or in connection with this agreement
shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by fax to its main fax number.
- Any notice shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting, and
- if sent by fax, at 9.00 am on the next Business Day after transmission.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
- Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
- Governing law and jurisdiction
- 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.
- The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This licence has been entered into on the date stated at the beginning of it.