1                 DEFINITIONS AND INTERPRETATION

1.1             In the Contract, unless the context does not so permit, the following expressions have the following meanings:

1.2             Unless the context otherwise requires, each reference in the Contract to:

1.2.1                  “writing” includes electronic communication (but not facsimile transmission), and the expression “written” shall be construed accordingly (provided that the burden of proof of delivery of an electronic communication shall fall on the party seeking to rely on it);

1.2.2                  a statute or a provision of a statute includes all subordinate legislation made under that statute or provision of a statute, as well we that statute, statutory provision or subordinate legislation as the same may be amended, re-enacted or replaced from time to time;

1.2.3                  a “Clause” is to a clause of the corresponding number in this document;

1.2.4                  any party includes that party’s successors and permitted assigns;

1.2.5                  a person includes a natural person or a corporate or unincorporated body (whether or not having separate legal personality); and

1.2.6                  a company includes any company, corporation or other body corporate, whether or not having separate legal personality.

1.3             The headings used in these Terms are for convenience only and shall have no effect upon the interpretation of the Contract.

1.4             Words denoting the singular number shall include the plural and vice versa; and references to any gender include a reference to other genders.

1.5             Any words in the Contract following the expressions “include”, “including”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those expressions.

1.6             References to “Compleat” in the context of obligations or liabilities owed to Compleat (whether in respect of the provision of the eCompleat Services, the eCompleat Solution or otherwise) and benefits or assurances to Compleat shall be deemed to include reference also to any company which is a subsidiary undertaking or a parent undertaking of Compleat Software Limited or any company which is a subsidiary undertaking of any such holding undertaking (“parent undertaking” and “subsidiary undertaking” having the meanings given to them in section 1162 of the Companies Act 2006) and, with Compleat Software Limited’s agreement, each Authorised Partner.

2                 PROVISION OF THE SOFTWARE

2.1             On and subject to the terms of the Contract and for so long as Customer pays the Charges in accordance with these Terms, Compleat agrees to make the eCompleat Service available for Customer to use on a non-exclusive and non-transferable basis in Customer’s own business (but not to provide any benefit of the eCompleat Service to any other business or person) from the Commencement Date until the date on which the Contract is properly terminated in accordance with its terms.

2.2             Compleat agrees to use reasonable commercial endeavours to reduce any period that the eCompleat Service is not available to Customer and shall seek to adhere to the extent that it is able using reasonable commercial efforts to provide the service support as published on Compleat’s website from time to time at https://www.compleatsoftware.com/terms-conditions/compleat-software-as-a-service-saas-service-terms/.

3                 CUSTOMER’S OBLIGATIONS

3.1             Customer shall:

3.1.1                  promptly following request by Compleat provide all such information, assistance, co-operation and support as Compleat may reasonably request from time to time in order to enable Compleat to perform its obligations under the Contract;

3.1.2                  comply with Applicable Law with respect to its use of the eCompleat Service and its activities under the Contract;

3.1.3                  satisfy all its obligations and liabilities under the Contract in a timely, courteous and efficient manner;

3.1.4                  ensure that each Authorised User is properly trained in the competent use of the eCompleat Service and eCompleat Solution;

3.1.5                  ensure that no person other than an Authorised User has access to any part of the eCompleat Service or Documentation;

3.1.6                  Authorised Users use only their own respective login and that only System Administrators shall be able to login and exercise System Administrator rights and privileges in relation to the eCompleat Service or eCompleat Solution;

3.1.7                  maintain a minimum of two System Administrators at all times (and if Customer has fewer than two System Administrators at any time it shall ensure that other Authorised Users receive the necessary training, at Customer’s expense, in order to secure approval as System Administrators by Compleat);

3.1.8                  ensure that a System Administrator triages all Customer’s support requests before service support is requested from Compleat (and Compleat may deny support or charge additional costs if such triage is not properly implemented);

3.1.9                  promptly notify Compleat of any changes Customer requires in the number of Authorised Users and System Administrators authorised by Compleat to have access to any relevant eCompleat Service or eCompleat Solution;

3.1.10                ensure that only adequately trained and authorised persons are permitted to access or use the eCompleat Service and eCompleat Solution and that Authorised Users at all times operate in accordance with (and adhere to) the requirements of this Contract and operating procedures, guidelines, codes of conduct and processes reasonably specified from time to time by Compleat (and Customer agrees that it shall be responsible for any breach of the Contract or failure to adhere with these requirements by an Authorised User);

3.1.11                ensure that its operating and processing environment for the eCompleat Service meets such specifications and other requirements as Compleat, acting reasonably, may notify to Customer from time to time;

3.1.12                be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Compleat’s infrastructure and for all hardware deployed by it, and for the resolution of all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet or any hardware deployed by it;

3.1.13                not use the eCompleat Solution to facilitate any illegal activity;

3.1.14                not disclose any information which is confidential to Compleat or any of its software or processes and not to seek to circumvent Compleat’s interests or deploy or use (or assist another to deploy or use) information or processes learned by Customer as a result of Customer’s dealings with Compleat; and

3.1.15                indemnify Compleat in respect of any loss or damage suffered by it as a result of a breach of this Clause 3.

3.2             Customer shall not:

3.2.1                  except to the extent required to adhere with any Applicable Law:

3.2.1.1            attempt to copy, modify, duplicate, create derivative works from, transmit or distribute all or any part of the eCompleat Solution in any form or media or by any means; or

3.2.1.2            attempt to decompile, reverse, compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form or amend, copy or emulate all or any part of the eCompleat Solution;

3.2.2                  use or access any part of the eCompleat Solution (whether directly or indirectly) for the purpose of developing or creating a product or service which might reasonably be regarded as competing with, or substituting, any part of the eCompleat Solution;

3.2.3                  except to the extent expressly permitted by the Contract:

3.2.3.1            licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make (or facilitate another person to make) any part of the eCompleat Solution available to any third party (except Customer’s own Authorised Users) or attempt to do any of these things; or

3.2.3.2            attempt to obtain, or assist third parties in obtaining, access to any part of the eCompleat Solution.

3.3             Customer agrees that each Order Form constitutes a request for Compleat to provide any eCompleat Service. Customer accepts that each eCompleat Service is provided subject to these Terms and that Compleat has no obligation to provide any eCompleat Service until it has confirmed its agreement to do so in writing.

3.4             Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, any part of the eCompleat Solution (and, if it becomes aware of, or suspects, any such unauthorised access or use, promptly notify Compleat in writing).

3.5             Customer agrees to use data or reports compiled or generated by the eCompleat Service or the eCompleat Solution or otherwise provided by Compleat for its own internal purposes only and also agrees not to copy any such data or reports to any third party or to provide or use them (or any of them) to any third party or to facilitate, use or promote a service competing with any service offered by Compleat.

3.6             Customer agrees not to remove or interfere with any claim to intellectual property or other right asserted by Compleat in any part of the eCompleat Solution or eCompleat Service (or any services provided at any time to any person by Compleat) and to take all such steps to protect Compleat’s confidential information (including Confidential Information as identified in Clause 10.1) and intellectual property rights as Compleat may reasonably require.

3.7             Compleat reserves the right to involve, and cooperate with, law enforcement authorities in prosecuting Authorised Users who may have breached any provision of this Contract.

4                 COMPLEAT’S OBLIGATIONS

4.1             Subject to the following provisions of this Clause 4 and the other Terms, Compleat undertakes that for so long as Customer pays the Charges Compleat shall use reasonable efforts to make the eCompleat Service available to Customer substantially as described in the Documentation (subject to any restrictions specified in the Order Form).

4.2             Compleat shall have no liability or obligation under an Order Form save to the extent that it expressly accepts the Order Form. If an Order Form includes any quotation, estimate or implementation timetable, that quotation, estimate or implementation shall not be binding on Compleat unless and until so agreed in writing by Compleat. If Compleat provides a Charge or fee estimate based on the time Compleat anticipates may be required Compleat shall be entitled to charge Customer for any additional time required in order to complete the provision of relevant eCompleat Service. Compleat shall also be entitled to charge for additional time expended attributable to any changes requested by or on behalf of Customer to any scope, statement of work or other specification of an eCompleat Service or resulting from any breach of these Terms by Customer (or failure to secure the full co-operation of any third party not contracted by Compleat).

4.3             The undertaking given by Compleat in Clause 4.1 shall not apply to the extent of any non-conformance of the eCompleat Service which is caused in whole or in part by any of the following:

4.3.1                  use of any part of the eCompleat Solution other than in accordance with the Contract or the Documentation;

4.3.2                  any total or partial failure on the part of Customer to implement, or any delay on the part of Customer in fully or partially implementing, any update or fault solution provided to it by or on behalf of Compleat; or

4.3.3                  any faults or failures in the hardware or operating system used by Customer or any attempt to operate any part of the eCompleat Solution on an operating system or technical configuration not approved by Compleat.

4.4             If the eCompleat Service materially fails to conform with the undertaking set out in Clause 4.1, Compleat will, at its expense, use reasonable commercial endeavours to correct such non-conformance promptly. Such correction constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 4.1.

4.5             Customer accepts that Compleat:

4.5.1                  does not warrant that the use by Customer of any part of the eCompleat Solution will be uninterrupted or error-free; or the eCompleat Solution (or the information, materials or other deliverables obtained by Customer through the use of any part of the eCompleat Service) will meet Customer’s requirements, or fulfil any specific commercial or operational objective of Customer (even if Compleat had actual notice of such objective); and

4.5.2                  is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer (or failure of any transfer) of data over communications networks and facilities, including the internet, and Customer acknowledges that the eCompleat Service, the Documentation or any proprietary or protected software deployed by Compleat may be subject to limitations, delays resulting from communications across such networks or problems inherent in the use of such technology; and

4.5.3                  may release new versions of its software from time to time (and may also amend the way in which any eCompleat Service or the eCompleat Solution is delivered or operates from time to time);

4.5.4                  shall have no continuing obligation to provide support if Customer has failed fully to implement any new release or amendment issued by Compleat within 12 months after the date on which Compleat first made the release available to Customer or issued the amendment (but this shall not operate to release Customer from any obligation or liability to make any payment to Compleat).

4.6             Compleat warrants that it has, and undertakes that it will maintain, all necessary licences, consents or (as the case may be) permissions necessary for it to provide the eCompleat Service on and subject to the terms of the Contract.

4.7             Compleat will use its reasonable endeavours to ensure that each invoice properly submitted to it by Customer is processed accurately in all respects, in both form and content. However, Compleat gives no warranty, promise or representation regarding the accuracy of processing any invoice and the parties confirm that it is the sole responsibility of Customer to verify that each invoice is correctly processed using the designated approval process stipulated by Compleat. If any invoice is found to be inaccurate Compleat will reissue it in accordance with the approval process, but under no circumstances will Compleat be liable to Customer for any financial or other loss, damage, costs or expenses suffered or incurred by Customer as a result of any inaccuracy in any invoice processed by Compleat.

4.8             If Compleat agrees to provide Customer (or assist Customer to secure) any third party service (such as internet access or other communications facilities, link or access) or other support in connection with any service provided by a third party Customer agrees that such supply or support is provided on and so subject to the terms published at www.compleatsoftware.com/terms-conditions/compleat-software-as-a-service-saas-service-terms/ from time to time (and that Compleat provides such supply or support without any liability or obligation other than in respect of loss resulting from its own fault).

5                 CHARGES AND PAYMENT

5.1             Customer shall pay the Charges to Compleat or its Authorised Partner in consideration of the provision of the eCompleat Service. Compleat may by giving Customer not less than one month’s notice change the amounts to be charged to Customer at any time (but if the change is not pre-agreed with Customer then Customer may be entitled to terminate as provided in Clause 14.2).

5.2             Compleat may require that payment of Charges shall be due in advance of supply (and where a relevant period is specified in the Order Form, at or before the beginning of that period). If no price is agreed in advance in respect of any service provided by Compleat (whether that is an eCompleat Service or otherwise) Compleat shall charge Customer on a time and materials basis. Customer shall (to the extent not otherwise agreed pursuant to an Order Form) reimburse Compleat for any reasonable expenses incurred by Compleat in connection with the provision of the any eCompleat Service.

5.3             Unless otherwise specified in the Order Form, all payments to Compleat shall be made by direct debit. Following due receipt of payment of Charges Compleat shall issue to Customer (or, if Customer has subscribed for the eCompleat Service through an Authorised Partner, to that Authorised Partner), an invoice in respect of the amount paid (including, where applicable Value Added Tax and other applicable taxes and duties) duly marked as receipted for that payment. If a payment due to be made by direct debit is not so made, Compleat may charge an administration Charge of up to 15% of the amount due to compensate it for the associated costs and losses of securing the payment.

5.4             If Compleat has not received payment within five (5) Business Days following the due date, (and without limiting any other rights and remedies of Compleat) Compleat may, without liability to Customer, suspend provision of any eCompleat Service and/or otherwise disable Customer’s access to the eCompleat Solution (and associated passwords, accounts and access to all or part of the eCompleat Solution) and Compleat shall be under no obligation to provide or maintain any or all of the eCompleat Service for so long as any amount owed to Compleat remains unpaid (and for a reasonable period after such payment to re-enable usage rights after all amounts due have been paid). Such suspension or other action taken by Compleat under this Clause shall not operate to suspend Customer’s obligations to pay Charges (whether during any period of suspension or disablement or otherwise).

5.5             All sums payable by Customer as stated or referred to in the Contract:

5.5.1                  shall be payable in such currency as Compleat, acting reasonably, may stipulate;

5.5.2                  are, subject to Clause 12.3.2, non-cancellable and non-refundable; and

5.5.3                  are exclusive of value added tax, sales tax or other similar taxes, duties or impositions, which Compleat may be required to pay and Compleat shall be entitled to be paid such amounts in addition to the amount stated (and which shall be itemised in invoices issued by it) at the rate that it is advised should apply from time to time.

5.6             Compleat’s Authorised Partners may at their discretion offer support, consultancy or other services to Customer. The terms on which any such services shall be provided shall be agreed between the relevant Authorised Partner and Customer and shall be the subject of a separate agreement between them, to which Compleat will not be a party and under which it shall have no obligations or liabilities.

5.7             The Charges are stated exclusive of Value Added Tax (VAT) and all other Government imposed excises or taxes (if any) which shall be paid by Customer at the rate and in the manner for the time being prescribed by law. Where Compleat is obliged to charge any such tax it may add the amount payable in respect of that tax (at the applicable prevailing rate) to the amount otherwise expressed to be payable by Customer. Compleat confirms that as at the date of this agreement it is not aware of any applicable tax other than VAT and taxes (if any) specified on the Order Form or any quotation provided to Customer by Compleat. Any amount payable by Customer under this Contract is payable upon demand by Compleat (whether such demand is made by means of an invoice or otherwise). All sums payable to Compleat under this agreement shall be paid free and clear of all deductions or withholdings and without set-off unless the deduction, withholding or set-off is required by law (provided that if any such deduction, withholding or set-off is so required Customer shall pay such additional amount as shall be required to ensure that the net amount received by Compleat will equal the full amount which it would have received but for such deduction, withholding or set-off). Compleat confirms that as at the date of this agreement it is not aware of any applicable such deduction, withholding or set-off is required by law (and if such obligation arises the parties shall negotiate in good faith to mitigate the loss incurred as a result of such obligation).

5.8             Customer acknowledges and agrees that if any amount is not paid on the due date of payment then (i) Compleat shall be under no obligation to continue to provide the eCompleat Service or the eCompleat Solution to Customer (and delivery of such services may be suspended, without prejudice to Compleat’s rights under to continued payment) unless and until all amounts owing to Compleat have been paid in full, (ii) Customer shall pay compensation and interest (on the bases provided for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998) from the date of issue of the relevant invoice or other request for payment to the date of payment; and (iii) Customer shall indemnify Compleat against all legal and other Charges, fees and expenses incurred or charged by it in relation to the collection of any overdue accounts under this Contract or to re-active any suspended service or solution.

5.9             Compleat shall be entitled to increase the Subscription Fees and any other fees with effect from the beginning of any subsequent subscription period by giving prior notice to the Customer.

6                 e-INVOICING

6.1             This Clause 6 only applies if the Order Form provides that Compleat will provide e-Invoicing to Customer.

6.2             Customer shall pay for e-Invoicing by way of Credits. Customer must purchase Credits in advance of use (Compleat may sell Credits in minimum bundles). Customer agrees to buy the number of Credits specified in the Order Form at the interval (whether monthly or annual) specified in the Order Form.

6.3             Where Customer holds Credits, following submission of an invoice for processing using the eCompleat Service Compleat shall debit from the balance of unused Credits held to the account of Customer the applicable processing charge for that invoice as agreed between Compleat and Customer. Credits will be deemed used in the order that they were acquired.

6.4             If the Credit held to the account of Customer becomes exhausted, Compleat shall not be obliged to process further invoices until Customer has purchased sufficient additional Credits to meet the cost of processing the invoices submitted.

6.5             If Customer fails to pay any Charges by the due date for payment, Compleat may continue to process invoices submitted by Customer using e-Invoicing but shall not be obliged to deliver the invoices to Customer unless and until Customer has paid those Charges in full.

6.6             All Credits purchased by Customer must be used within twelve (12) months of the date of purchase, or, if earlier, before the expiry or termination of the Contract (after which time any unused transaction Credits will be forfeited without compensation). Credits purchased as part of an “Annual e-Invoicing” arrangement will expire 12 months from the date on which they are purchased.

6.7             Where Customer uses e-Invoicing it shall send invoices for processing by attaching them in the form of a pdf file to an email message from a designated account or domain agreed in advance with Compleat (each an “invoice pdf”). Compleat may treat any email from such account or domain which has an attachment as a request for the attachment to be processed using the eCompleat Service.

6.8             Subject to the terms of the Contract, provided that Customer has sufficient Credits to pay for the eCompleat Service Compleat will use its reasonable endeavours to process each invoice validly submitted by Customer using e-Invoicing. If for any reason Compleat is unable to process any given invoice it shall at its discretion forward the invoice pdf either into its own applications or to one of its business partners for processing.

6.9             Compleat will use reasonable commercial efforts to retain all data provided by Customer in connection with the processing of invoices, together with all back-up copies of such data produced by it for security purposes;

6.9.1                  for so long as Customer maintains its subscription to e-Invoicing (or, if sooner, seven years from the date on which the data was generated); and

6.9.2                  for a period of not less than sixty (60) days following the effective date of termination of the Contract or (if earlier) the effective date of termination of Customer’s subscription to e-Invoicing for the purpose of enabling Customer to recover such data, which it may do on request. If Customer has made no such request by the end of the said period of sixty days, Compleat may delete such data in full.

7                 e-PROCURE

7.1             This Clause 7 only applies if the Customer provides Compleat with an Order Form to deliver e-Procure services to Customer. e-Procure is a solution designed to identify and secure savings for the Customer and for which Compleat is compensated by being entitled to a share of savings calculated as specified in this clause 7.

7.2             In this clause the expressions identified in bold below shall have the meanings set against them:

7.2.1                  “e-Procure Shared Saving” 30% (or other percentage stated for this purpose in the relevant Order Form) of the value of the Savings Quotient applicable to the actual spend on the Procure Category items throughout the Share Period plus (in each case) applicable VAT and other sales taxes;

7.2.2                  “Detailed Spend Review” the detailed spend review undertaken by Compleat in accordance with clause 7.4;

7.2.3                  “Historic Cost” is the amount (as notified to Customer by Compleat in accordance with clause 7.6) actually paid by Customer for goods and services falling within the relevant Procure Category during the period in respect of which the Detailed Spend Review is undertaken by Compleat;

7.2.4                  “New Cost” is the amount (as notified to Customer by Compleat in accordance with clause 7.6) that Customer would have paid for goods and services falling within the relevant Procure Category during the period in respect of which the Detailed Spend Review is undertaken by Compleat had the Selected Supplier Model applied through that period;

7.2.5                  “Procure Category” is the category of spend specified in the relevant Order Form (or, failing agreement in the Order Form, the category which Compleat identifies as providing the opportunity of savings to Customer);

7.2.6                  “Savings Quotient” is in relation to each relevant Procure Category the result of ;

7.2.7                  “Selected Supplier Model” means the Supplier Model selected in accordance with clause 7.7;

7.2.8                  “Share Period” is, unless otherwise stated in the Order Form, the period of 36 months (or other period stated for this purpose in the relevant Order Form) starting at the end of the month in which the Supplier Model is selected in accordance with clause 7.7; and

7.2.9                  “Supplier Model” means an arrangement with selected supplier(s) to procure goods and services in respect of the relevant Procure Category designed to optimise the value secured by Customer.

7.3             Customer represents that it has fully disclosed in writing (or shall so disclose prior to Compleat starting its detailed spend review) to Compleat details of all:

7.3.1                  previous spend reviews that it has undertaken or commissioned or received within the previous three years in relation to the Procure Category the subject of the relevant Order Form; and

7.3.2                  unexpired term agreements that it has entered into (or negotiated or sought to negotiate) with a supplier in relation to the supply of any items within the Procure Category the subject of the relevant Order Form.

7.4             Following agreement of an e-Procure plan in respect of a Procure Category Compleat shall undertake a detailed spend review of actual Historic Cost by Customer on goods and services falling within the Procure Category over a period of a minimum of three months to a maximum of 12 months for the purpose of tendering to secure alternative Supplier Models.

7.5             Customer agrees to cooperate with Compleat in undertaking the Detailed Spend Review and throughout the Share Period by providing access to all relevant data, information and transactions and will also, if so requested by Compleat, provide Compleat with Letters of Authority to facilitate direct contact between Compleat and Customer’s suppliers and authorise and instruct such suppliers to share all such information as Compleat requires in order to undertake the Detailed Spend Review and to calculate the e-Procure Shared Saving (including where ever possible, without limiting the generality of this provision, SKU details, detailed item descriptions, purchase order details, supplier invoice details total costs and costs broken down by costs of goods and service, delivery/ post and packing, insurance and tax).

7.6             Following completion of the Detailed Spend Review Compleat shall provide Customer with details of any Supplier Models which it can make available to the Customer demonstrating the amount that Customer would have paid to purchase the goods and services the subject of the Historic Cost had the relevant Supplier Model been implemented during the period of the Detailed Spend Review. The Customer acknowledges that Compleat is undertaking the detailed spend review at its own risk and that Compleat may not identify an appropriate Supplier Model (in which case Compleat shall have not further liability or obligation to Customer in respect of the Procure Category the subject of the relevant Order Form).

7.7             Within 30 days of Compleat presenting the competing Supplier Models in accordance with clause 7.6, Customer will notify Compleat in writing of the Supplier Model that, at its sole discretion the Customer selects as offering it best value (if Customer fails to so notify Compleat within that 30 day period, Customer shall be deemed to select the Supplier Model which provides the highest Savings Quotient).

7.8             From payment of the first e-Procure Shared Saving until the end of the Share Period Compleat shall provide Customer with access to view spend analytic reports relating to Customer’s Procure Category (this report may include details of “maverick spend” being transactions identified by Compleat as being material to Customer’s aggregate spend on the relevant Procure Category spend which are less beneficial to Customer than the spend which would have been pursuant to the Selected Supplier Model). Customer may separately subscribe to Compleat’s benchmarking services and detailed e-Procure summary and detailed spend analytics service (but, unless otherwise stated on the relevant Order Form these are not included as part of the e-Procure service).

7.9             Compleat agrees to provide Customer with reasonable assistance to ensure that all Procure Category goods and services may be procured by Customer through the Selected Supplier Model and Customer acknowledges that the e-Procure Shared Saving shall be payable in respect of the entire spend on all Procure Category goods and services that it acquires through the Share Period (including spend made otherwise than through the Selected Supplier Model).

7.10           Customer shall pay Compleat an amount equal to the e-Procure Shared Saving as calculated by Compleat for the duration of the Share Period (subject to the addition of any applicable sales taxes). Compleat may invoice the e-Procure Shared Saving in respect of the relevant Procure Category at the end of the month after the start of the applicable Share Period, and then at regular intervals until the end of that Share Period (each invoice being in respect of the actual spend within the period to which the invoice relates). If Customer defaults on making information available to enable Compleat to calculate the value of, or defaults in making payment of the e-Procure Shared Saving or purports to terminate the e-Procure service, Compleat may terminate or suspend the provision of any service that Compleat then makes available to Customer without obligation or liability to Customer and may also charge a termination fee equal to the value of the then unpaid e-Procure Shared Saving as determined by Compleat making extrapolation from the date of termination to the end of the Share Period (the extrapolation to be based on the previous 12 months’ data or, if termination is before the first anniversary of the start of the period of the Share Period, the period since the start of that spend review) and any other amount then owed or contracted to be paid by Customer. The Compleat termination invoice will be due for payment within 30 days from issue.

7.11           Customer is not permitted to use any analysis or data compiled or provided by Compleat for any purpose other than the implementation and enhancing of the e-Procure service (and Customer agrees not to disseminate any such data or analysis to a third party or use any such data or analysis to benefit any other person) without the written permission of Compleat.

8                 MAINTENANCE AND SUPPORT

8.1             Compleat agrees to undertake such maintenance of, to and implement such upgrades to, the eCompleat Service as it reasonably considers necessary from time to time for the purpose of ensuring that the eCompleat Service are compliant in all material respects with the functionality described in the Documentation. Such maintenance may comprise the following:

8.1.1                  planned maintenance to Compleat’s infrastructure used to provide the eCompleat Service, of which Compleat shall give Customer reasonable notice, and which Compleat shall use reasonable endeavours to undertake outside the hours of 09:00 hours to 17:00 hours (United Kingdom time) on a Business Day; and

8.1.2                  unscheduled essential maintenance to Compleat’s infrastructure, of which Compleat shall give to Customer such notice (if any) as is practicable and reasonable in all the circumstances and which may be undertaken at any time (provided that Compleat will use its reasonable endeavours when undertaking of such maintenance to avoid causing disruption to the eCompleat Service during the hours of 09:00 hours to 17:00 hours (United Kingdom time) on a Business Day).

8.2             Compleat will use its reasonable endeavours to undertake maintenance of the eCompleat Service within any timescale notified by it to Customer, and where no such timescale is specified Compleat will seek to complete the maintenance once started as soon as is reasonably practicable in all the circumstances.

8.3             To the extent that Compleat is unable on any occasion to undertake any specific scheduled maintenance within the timescale notified to Customer Compleat shall (where reasonably necessary) use its reasonable endeavours to provide Customer with a workaround solution to enable Customer to continue to use the eCompleat Service with a level of performance and functionality as near as is reasonably practical to that specified in the Documentation.

8.4             Subject to Clause 8.5, if Customer notifies Compleat of a fault in the eCompleat Solution which is material to Customer’s use of the eCompleat Service and which arises as a result in an error inherent in the eCompleat Solution, Compleat shall provide the following support to Customer:

8.4.1                  access to Compleat’s Learning and Information Centre (“eCLIC”);

8.4.2                  if the fault cannot be resolved through the use of eCLIC then Compleat shall:

8.4.2.1            use its reasonable endeavours to correct the notified fault in a timely fashion and, to the extent that is unable to do so will take such actions as it is reasonably able to mitigate the adverse effects of the fault suffered by Customer;

8.4.2.2            provide Customer with regular updates as to the status of the fault rectification programme; and

8.4.2.3            if the fault may be remedied by implementation of an upgrade which is then available for sale by Compleat, Compleat shall provide the update free of charge (provided that Customer shall pay at Compleat’s then standard charges for any integration, bespoke development or consultancy or other services which it requests from Compleat in connection with the installation of the relevant upgrade).

8.5             Compleat shall only provide the support services referred to in Clause 8.4 if (i) it has in the Order Form agreed to provide such support directly to Customer, and (ii) there are no amounts overdue to be paid by Customer to Compleat. Notwithstanding the foregoing, Compleat shall be under no obligation to provide support services if Customer has entered into an agreement with an Authorised Partner of Compleat for the provision of support.

8.6             Without limiting Customer’s obligations under Clause 3, Customer agrees that when requesting or receiving in respect of support, maintenance or a fault it shall provide Compleat, in a timely fashion such assistance, co-operation and information as Compleat may reasonably request from time to time in order to enable it to provide the support, maintenance or assistance with the fault (including, without limiting the generality of this provision, giving access and assistance to assist Compleat to diagnose and monitor any fault or other behaviour).

8.7             Compleat shall be under no obligation to provide support to Customer to the extent that such support is rendered necessary by any of the events, matters or circumstances referred to in Clause 4.3. Should Compleat, in its absolute discretion, agree to provide support in such circumstances it reserves the right to charge Customer for that support in accordance with its standard charges in force from time to time.

8.8             If it is found that a fault in the eCompleat Service has caused any information created or processed by it to be inaccurate or incomplete before Customer is able to detect the inaccuracy or incompleteness, Compleat shall offer assistance to Customer to identify (and if possible correct or restore) such information. Compleat gives no warranty that it will be able to recover Customer’s data.

8.9             Compleat may agree to provide copies of data and reports or other support to Customer subject to payment of such data transfer and support Charges and fees as Compleat may specify.

9                 INTELLECTUAL PROPERTY RIGHTS

9.1             Compleat confirms that proprietary intellectual property rights in the eCompleat Solution (and any modification to it) that Compleat requires to provide the eCompleat Solution to Customer belong to or are properly licensed to (and shall continue to belong to or be so licensed to) Compleat.

9.2             Customer undertakes to assist Compleat to defend any claim or action that the possession, use, development, modification or maintenance of the eCompleat Solution provided to Customer by Compleat (or any part of the eCompleat Solution) infringes the intellectual property rights of a third party and Compleat agrees to indemnify Customer fully from and against any losses, damages, costs (including all reasonable legal fees and expenses) properly incurred by (or awarded against) Customer as a result of any such claim (a “Claim”) being successful.

9.3             If any third party makes a Claim, or notifies an intention to make a Claim, against Customer then Customer shall:

9.3.1                  as soon as reasonably practicable, give written notice of the Claim to Compleat, specifying the nature of the Claim in reasonable detail;

9.3.2                  not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Compleat;

9.3.3                  give Compleat 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 Customer, so as to enable Compleat and its professional advisers to examine them and to take copies (at Compleat’s expense) for the purpose of assessing the Claim; and

9.3.4                  subject to Compleat providing reasonable security to Customer against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as Compleat may reasonably request to avoid, dispute, compromise or defend the Claim.

9.4             If any Claim is made, or if in Compleat’s reasonable opinion is likely to be made, against Customer (or if Compleat is aware that a claim in respect of infringement of any intellectual property right may be brought against it) then Compleat may, at its sole option and expense:

9.4.1                  procure for Customer the right to continue using, developing, modifying or maintaining the eCompleat Solution (or any part of it) in accordance with the terms of this licence;

9.4.2                  modify the eCompleat Solution (or any part of it) so that it ceases to be infringing;

9.4.3                  replace any part of the software comprising a part of the eCompleat Solution with non-infringing software; or

9.4.4                  terminate the Contract immediately by notice in writing to Customer and (i) except in respect of Compleat’s obligation to make the refund in accordance with the following provisions of this clause 9.4.4, Compleat shall have no further liability or obligation to Customer, and (ii) Compleat shall (provided that Customer has first returned any proprietary information relating to the eCompleat Solution and eCompleat Services (together with copies) then held or controlled by Customer) refund to Customer any of the refundable Charges paid by Customer in respect of the relevant period as at the date of termination less a reasonable sum in respect of Customer’s use of the eCompleat Solution and eCompleat Services to the date of termination.

9.5             Customer acknowledges and agrees that Compleat or its licensors own all intellectual property rights in the eCompleat Solution and in each database that Compleat has spent, or continues to spend, material time and resources on the selection and arrangement of data as an intellectual creation on any website or computer system or network it uses in connection with any eCompleat Service or the eCompleat Solution (excluding any database created solely by operation of any third party software). Except as expressly stated in these Terms in relation to the eCompleat Service, the Contract does not grant Customer any rights to, under or in, any intellectual or industrial property rights, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences of any kind in respect of the eCompleat Solution or any other work product comprising or created pursuant to any services provided by Compleat to any person at any time.

9.6             Compleat confirms that it has sufficient rights in relation to the eCompleat Service that are necessary to grant the rights for Customer to use the eCompleat Service in accordance with the terms of the Contract.

9.7             Customer agrees not to provide (whether for payment or not) any services or functions provided by Compleat or any part of the eCompleat Solution to any other person.

9.8             Compleat may access, process, use and disclose to third parties data posted by or on behalf of Customer on any website or computer network Compleat uses in connection with the provision of the eCompleat Solution or any other services (including Customer’s personnel data) as reasonably necessary to operate or maintain the eCompleat Solution or other services (including virus scanning) provided that all information relating to or generated by Customer (including, without limitation, its employees, customers, business and activities, including such data otherwise governed by applicable Data Protection Legislation, posted or submitted to any eCompleat Solution or any eCompleat Service by Customer or any Authorised User) so disclosed or made available pursuant to this Clause 9.8 to any third party shall not link the relevant data with Customer or specifically identify any individual, company or entity. Compleat may use the rights granted to it in this Clause 9.8 to comply with obligations Compleat has to Customer or other customers to evaluate or improve the performance and implementation of, or to promote and market, any eCompleat Solution or eCompleat Service, to perform statistical analyses and other data mining activities and to present such data in whatever format Compleat requires (including, without limiting the generality of this provision, to measure, amongst other things, interest in and use of the eCompleat Solution or eCompleat Service and to develop and design new products and services).

10               CONFIDENTIALITY AND DATA PROTECTION

10.1           Each party (the “Receiving Party”) may be given or acquire access to Confidential Information from the other party in order to perform its functions and obligations or exercise its rights, under or in relation to the Contract. For the purposes of this Clause 10 “Confidential Information” means in relation to each party any proprietary or confidential information relating to it (or to any person with which it deals other than the other party) but shall not include information that:

10.1.1                is or becomes publicly known other than through any act or omission of the Receiving Party;

10.1.2                was directly in the Receiving Party’s possession and at its free disposal before the disclosure;

10.1.3                was lawfully disclosed to the Receiving Party by a third party lawfully entitled to disclose the same, without any obligation of confidentiality being imposed on the Receiving Party in respect of it; or

10.1.4                is independently developed by the Receiving Party, which independent development can be shown by written evidence.

10.2           Subject to Clause 10.4 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 the Contract.

10.3           The Receiving Party shall, the provisions of Clause 10.2 notwithstanding, be entitled to disclose Confidential Information of the other party to such of its employees, officers, agents, contractors or professional advisers who have a genuine need to know the same in order to be able to carry out their duties in relation to the Contract (in each case, “a permitted individual”). The Receiving Party shall make each permitted individual aware of the obligations of confidentiality and non-use contained in this Clause and use reasonable endeavours to ensure that each permitted individual observes and performs these obligations.

10.4           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 10.4 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5           Customer acknowledges that details of the eCompleat Solution, and the results of any performance tests of the eCompleat Solution, constitute the Confidential Information of Compleat.

10.6           Customer agrees that, subject to Clauses 10.7 and 10.9, (i) Compleat may use any data generated or derived by it as a result of providing eCompleat Solution or of Customer using the eCompleat Service (and that Compleat may compile and aggregate such information for its own business purposes from time to time), and (ii) Compleat owns all rights and interests in the data bases referred to in Clause 9.5 (and data in those databases).

10.7           Compleat undertakes that (save to the extent required by law or applicable regulation) it shall not disclose the identity of Customer (or information from which Customer’s identity may reasonably be expected to be derived) as the source of financial information collected by it and referred to in Clause 10.6.

10.8           To facilitate compliance with the requirements of Data Protection Legislation (as in each case updated or replaced from time to time) Customer, as the data controller, and Compleat, as the data processor, each agree to adhere to the terms of the Data Processing Agreement (which may be amended to the extent required to adhere to law or best practice) as published on Compleat’s website from time to time www.compleatsoftware.com. Subject to Compleat adhering to the terms of that Data Processing Agreement, Customer agrees to hold Compleat harmless in respect of any breach of the GDPR (and other applicable legislation) resulting from Customer’s access to or use of eCompleat Service or the eCompleat Solution.

10.9           Both parties agree to comply with the Data Protection Legislation in the exercise of their rights and the performance of their obligations under the Contract. Where either party requires to process personal data of which the other is the controller, that party (the “processor”) shall:

10.9.1                keep the personal data confidential;

10.9.2                process that personal data solely for the purpose of exercising its rights and performing its obligations under the Contract, provided that the processor shall be permitted to process, use and store the personal data for other purposes where it is required to do so by law;

10.9.3                ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing, use and storage of personal data and accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might reasonably be expected to result from such unlawful or unauthorised processing, storage, use, loss 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;

10.9.4                use reasonable endeavours to ensure that all of its employees, officers, workers, agents, representatives and sub-contractors and the employees, officers and workers of such agents, representatives and sub-contractors keep the personal data confidential;

10.9.5                not transfer any personal data to a country outside the European Economic Area except to the extent that such transfer is permitted under the Data Protection Legislation;

10.9.6                comply with such other reasonable instructions with respect of processing personal data as the controller may issue from time to time;

10.9.7                assist the controller in responding to any request from a data subject to exercise his or her rights under the Data Protection Legislation, and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;

10.9.8                notify the controller without undue delay on becoming aware of a personal data breach or communication which relates to compliance with the Data Protection Legislation;

10.9.9                at the written request of the controller delete or return personal data and any copies of that data to controller upon the termination of the Contract save to the extent that the processor is lawfully obliged to retain it; and

10.9.10              maintain complete and accurate records and information to demonstrate compliance with this Clause 10.9. The processor agrees that any sub-contractor appointed by it is a third-party processor of personal data under the Contract. The controller undertakes to enter into a written agreement, which incorporates terms which are substantially similar to those set out in this Clause 10.9, with any sub-contractor. The processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it.

10.10         Compleat may make any public comment about this agreement including naming Customer as a user of the eCompleat Service.

10.11         Compleat may (subject always to the provisions of Clause 10) use data provided by Customer in the same way as it may use data provided by other customers to compile aggregated financial and management information which Compleat may use for its own business purposes.

10.12         The above provisions of this Clause 10 shall survive termination of the Contract, however arising.

11               INDEMNITY

11.1           Customer shall fully indemnify Compleat and keep Compleat fully indemnified from and against any and all actions, claims, demands, costs (including without limitation court costs and reasonable legal fees), expenses, losses, damages or liability suffered or incurred by Compleat and arising out of or in connection with Customer’s access to or use of the eCompleat Solution or breach of the Contract.

11.2           Compleat shall fully indemnify Customer and keep Customer fully indemnified from and against any and all actions, claims, demands, costs (including reasonable legal costs), expenses, losses, damages or liability to the extent that the same arises or occurs as the result of a breach by Compleat of Clause 9.6 giving rise to any allegation from any third party against Customer that the use by Customer of the eCompleat Service infringes any copyright, trade mark or right of confidentiality of that third party.

11.3           The entitlement of either party (the “indemnified party”) to an indemnity from the other party (the “indemnifying party”) pursuant to Clauses 11.1 or 11.2 shall be conditional upon the following conditions being met:

11.3.1                the indemnified party shall notify the indemnifying party of any relevant allegation (the “Claim”) as soon as reasonably practicable and in any event no later than the second Business Day following the day on which the indemnified party first becomes aware of the Claim;

11.3.2                the indemnified party shall allow the indemnifying party to have full control of the defence or settlement of the Claim, and shall make no attempt directly or indirectly to settle the Claim; nor enter into any discussion or negotiations with any third party having as their object or intended effect the defence or settlement of the Claim, provided that the indemnifying party shall not settle the Claim on any terms which require the payment of money, or the incurring of any obligation or liability, by the indemnified party, without the express prior written consent of the indemnifying party (such consent not to be unreasonably withheld or delayed); and

11.3.3                the indemnified party shall provide to the indemnifying party in a timely fashion such assistance, co-operation and information as the indemnifying party might reasonably require from time to time in connection with the defence or settlement of the Claim.

11.4           In the defence or settlement of the Claim Compleat may procure the right for Customer to continue using the eCompleat Service, or replace or modify the eCompleat Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on two (2) Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or any other form of redress to Customer.

11.5           In no event shall Compleat, its employees, agents or sub-contractors be liable to Customer under Clause 11.2 to the extent that the alleged infringement arises as the result of any event, matter or circumstance specified in Clause 4.3.

12               LIMITATION OF LIABILITY

12.1           Except as expressly and specifically provided in the Contract.

12.1.1                Compleat shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to it by Customer in connection with the eCompleat Service, or any actions taken by Compleat at Customer’s discretion;

12.1.2                all warranties, representation, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from the Contract, and

12.1.3                the eCompleat Service is provided to Customer on an “as is” basis (and Customer agrees it has no rights or entitlements under the Contract except in relation to the right to use the eCompleat Service).

12.2           Nothing in the Contract excludes the liability of Compleat:

12.2.1                for death or personal injury caused by Compleat’s negligence; or

12.2.2                for fraud or fraudulent misrepresentation.

12.3           Subject to Clause 12.1 and Clause 12.2:

12.3.1                Compleat shall not be liable whether in tort, loss of revenue, contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business or of business opportunity, depletion or goodwill or similar losses or loss or corruption or other alteration of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract and regardless of whether Compleat had notice of the possibility of such losses arising; and

12.3.2                Compleat’s total aggregate liability in restitution (in respect of the indemnity at Clause 11.2), contract, tort, misrepresentation or otherwise howsoever arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Charges paid by Customer for the eCompleat Service during the 12 months immediately preceding the date on which the event, matter or circumstance giving rise to the liability arose or occurred.

13               DISPUTE RESOLUTION

13.1           Each party shall use all reasonable efforts to resolve amicably and expeditiously any dispute which may arise between them concerning this Contract. If however a dispute cannot be resolved amicably within 7 days of such dispute being notified in writing by one party to the other for the purposes of this Clause, then the dispute shall be determined as follows.

13.2           If the dispute is of a technical nature concerning the interpretation (other than interpretation of an obligation to make payment to Compleat) of this Contract or any document created pursuant to it (or incorporated by reference into it) or relating to the functions or capabilities of the eCompleat Solution or eCompleat Service (or any similar or related matter) or that the parties otherwise agree is of a technical nature, then the parties shall attempt to settle the dispute by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing to the other party to the dispute requesting a mediation. A copy of the request shall be sent to CEDR Solve. The mediation will start not later than 10 Working Days after the date the notice. If the matter has not been resolved by mediation within 30 days of the initiation of such procedure, or if a party will not properly participate in the mediation procedure within 5 days of a request by the other party, the dispute shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of those courts for such purpose. In this Clause references to CEDR are to CEDR Limited (being the Centre for Effective Dispute Resolution, a company registered in England with number 2422813 and which is registered as a charity with number 1060369).

13.3           All other disputes shall be referred as a matter of urgency to the managing directors or appropriate senior management of each party and if they cannot resolve such dispute within 21 days of it being referred to them then the dispute shall be determined by the English Courts and the parties agree to submit to the non-exclusive jurisdiction of those courts for such purpose.

14               TERM AND TERMINATION

14.1           The Contract shall come into effect on the Commencement Date and shall (without limiting any express right of termination contained in the Contract) continue on each anniversary of the Commencement Date unless Customer gives Compleat not less than 45 days’ written notice of termination (such notice to be given so as to expire no later than the end of the calendar month last ending before the anniversary of the Commencement Date).

14.2           Customer may terminate this agreement by giving Compleat at least six months’ written notice (ending on the last day of a calendar month) within one month of Compleat notifying Customer pursuant to Clause 5.1 of a price increase (other than any “pass-through” increase) that is more than 2% above the increase in the Retail Prices Index published by the Office for National Statistics of the United Kingdom Government (calculated since the date of the last increase to Compleat’s standard prices), if Customer gives Compleat such notice the notified increase shall not apply to Customer during the notice period.

14.3           Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving notice to the other party if:

14.3.1                the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than fourteen (14) Business Days after being notified in writing to make such payment;

14.3.2                the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) Business Days after receipt of a notice from the terminating party identifying the breach in question and requiring it to be remedied;

14.3.3                the other party repeatedly breaches any of the terms of the Contract 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 the Contract;

14.3.4                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;

14.3.5                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.

14.3.6                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;

14.3.7                an application is made to court or an order to 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;

14.3.8                the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

14.3.9                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;

14.3.10              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 fourteen (14) days;

14.3.11              any event occurs, or proceedings 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 14.3.4 to Clause 14.3.10 (inclusive); or

14.3.12              the other party suspends or ceases, or in the reasonable opinion of the terminating party is likely to suspend or cease, carrying on all or a substantial part of its business.

14.4           If Compleat is exercising a right of termination contained in Clauses 14.1 to 14.3 it may elect instead to suspend the provision of all or any part of the eCompleat Service (or terminate the Contract as a whole). If it elects to suspend access to the eCompleat Service the Contract shall continue in full force and effect except to the extent so suspended (and the Charges shall continue to accrue).

14.5           On termination of the Contract for any reason:

14.5.1                all rights granted to Customer under the Contract shall immediately terminate and Customer shall immediately cease all use of the eCompleat Solution, save that Customer shall, for a period of 60 days beginning on the day following the effective date of termination of the Contract as determined in accordance with Clause 14.1, be entitled to download any information, data or materials previously produced or processed using the eCompleat Service;

14.5.2                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;

14.5.3                without limiting the generality of Clause 14.6 to the extent that any amount payable by Customer to Compleat under the Contract remains due and unpaid as at the effective date of termination, Customer shall pay the same to Compleat in full, without deduction or set-off, within ten (10) Business Days.

14.6           Termination of the Contract, however arising, shall not affect or prejudice 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.

14.7           Except to the extent expressly provided to the contrary in these Terms, no part of any amount paid or payable to Compleat by Customer shall be repayable on termination of the Contract for any reason.

15               MISCELLANEOUS

15.1           Force majeure: Compleat shall have no liability to Customer under the Contract for any failure to perform, or delay in performing, any of its obligations under the Contract to the extent that such delay or failure is caused by any event, matter or circumstance beyond its reasonable control.

15.2           Variation: No variation of the Contract shall be effective unless it is in writing and signed by an authorised signatory of each of the parties.

15.3           Waiver: No failure or delay by a party to exercise any right or remedy provided under the Contract 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.

15.4           Rights and remedies: Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

15.5           Severance: If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

15.6           Enforceability: If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

15.7           Entire agreement: The Contract constitutes the entire agreement between the parties regarding, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to, its subject matter.

15.8           No reliance: Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not incorporated into the Contract by way of express provision. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

15.9           Fraud: Nothing in Clauses 12 or 15.7 to 15.8 shall limit or exclude the liability of either party for fraud or for fraudulent misrepresentation.

15.10         Assignment: Customer shall not, without the prior written consent of Compleat, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. Compleat 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 the Contract.

15.11         Suggestions: Customer and Authorised Users may from time to time provide feedback, comments and/or suggestions for improvements or modifications. The parties agree that all such feedback/ comments and suggestions are (and shall be) given entirely voluntarily and, even if designated as confidential by Customer or an Authorised User shall not, absent a separate written agreement agreed to be Compleat, create any confidentiality obligation for Compleat and (except as otherwise provided in this Contract or in a separate subsequent written agreement agreed to be Compleat) Compleat may use, disclose, reproduce, license or otherwise distribute, and exploit any such feedback/ comments and suggestions (or development resulting from any of them) as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

15.12         No partnership or agency: Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

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

15.14         Notices: Any notice required to be given under the Contract shall be in writing and shall be delivered by hand (including by means of courier service) or sent by pre-paid first class post to the other party at its address set out in the heading to the Contract, or such other address as may have been notified by that party for such purposes, or sent by electronic mail to such address of the other party as each party shall notify to the other from time to time.

15.15         Subject to Clause 15.16 any notice served in accordance with Clause 15.14 shall be deemed to have been given at the following respective times:

15.15.1              in the case of a notice given by hand, on the day of delivery;

15.15.2              in the case of a notice delivered by post, on the third Business Day after the date of posting (as evidenced by the relevant postmark); and

15.15.3              in the case of a notice sent by electronic mail, at the date and time on which the notice is sent (as evidences by the date and time at which it is received into the recipient’s Inbox).

15.16         Where, pursuant to the provisions of Clause 15.15 a notice would be deemed to have been given on a day which is not a Business Day or where the actual time of receipt of a notice is later than 16:00 hours local time, that notice shall be deemed to have been given on the next following Business Day.

15.17         It shall be sufficient in proving service that the notice was correctly addressed to the recipient and, as the case may be, either delivered, committed to the post or sent.

15.18         Governing law: The Contract 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.

15.19         Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

Last Updated on 26^th May 2021