Last Updated: December 22, 2020, 14:00 GMT

Subsector Customer Terms and Conditions (these “Terms and Conditions”)

This Agreement applies to the Services provided by Subsector to the Customer.

1. Definitions

In this Agreement:

1.1     the following terms shall have the following meanings in this Agreement, unless the context otherwise requires:

“Advanced Support Service” interactive support services provided or to be provided on request by Subsector to the Customer in relation to the N2D Method, from time to time, up to a capped amount, as may be more particularly described in this Agreement;

“Advanced Support Service Fee” any amount payable by the Customer for the Advance Support Service, as stipulated on the Website or agreed between the Parties in writing (including through the Customer Account);

“Advanced Training Service” the training service(s) provided or to be provided on request by Subsector to the Customer from time to time;

“Advanced Training Service Fee” the amount payable by the Customer for the Advanced Training Service from Subsector, as stipulated on the Website or agreed between the Parties in writing (including through the Customer Account);

“Affiliate” anyone who controls or is controlled by the applicable Party, or anyone controlled by someone who controls the applicable Party; where “control” means the power directly or indirectly to secure that the affairs of the controlled person are conducted in accordance with the wishes of the controlling person:
(a) by means of the holding of shares, or the possession of voting power, in or in relation to that controlled person; or
(b) by virtue of any powers conferred by the articles of association, or any other document, regulating that controlled person;

this “Agreement” these Terms and Conditions together with the relevant Online Form;

“Basic Support Service” a self-service question and answer facility provided or to be provided by Subsector to the Customer where the Customer can search pre-loaded questions and answers relating to use of the N2D Method;

“Business Day” any day other than (a) a Saturday, (b) a Sunday, or (c) a day on which the clearing banks in London, England are closed;

“Business Hours” between the hours of 9am and 5pm (local time in the City of London, England) on a Business Day;

“Client User” any user of the N2D Method who is authorised by the Customer to access the N2D Method and N2D Method Content on a read-only basis;

“Commencement Date” the date on which the Customer registers for the Service through submission of the Online Form to Subsector;

“Confidential Information” any information in any form or medium obtained by or on behalf of one Party or its Affiliates from or on behalf of the other or its Affiliates in relation to this Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information (and Subsector’s “Confidential Information” shall include the N2D Method and N2D Method Content and any information relating to Subsector’s Affiliates or its or their employees, agents, subcontractors and other customers, and the contents of this Agreement);

“Contaminants” computer software routine intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorised access to, or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices;

“Customer” the person(s) whose details are set out in the Online Form;

“Customer Account” an online account created by Subsector for each Customer on acceptance by Subsector of an Online Form and which provides the Customer with access to the Services;

“Customer Third Party Software” any software required by Subsector to be used by the Customer in order to access the Services in which the Intellectual Property Rights are not owned or licensed by Subsector;

“Data” any data used in relation to the Customer’s or the Customer’s Affiliates’ or Users’ businesses (including data which may be partially derived from User activity) obtained by Subsector, including related to the use of and access to the N2D Method and any data supplied or inputted by the Customer’s employees, agents or contractors onto the Hosted System. This may include data that enables benchmarking the use of and/or access to the N2D Method;

“Fee” any fee payable by the Customer under or pursuant to this Agreement and which may include the Subscription Service Fee, the PAYG Service Fee, the Advance Support Service Fee and the Advanced Training Service Fee;

“Free Trial Period” the time period specified by Subsector from time to time (including on the Website) in which the Customer may access the Subscription Service without charge subject to the terms and conditions of this Agreement;

“Hosted Service” the Subscription Service or the PAYG Service;

“Hosted System” any hosted system for Subsector’s provision to the Customer of access to the Hosted Service;

“Intellectual Property Rights” copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;

“Liability” has the meaning given to it in Clause 16.10.1;

“Licence” the licence granted to the Customer in accordance with Clause 6.1 or Clause 6.2;

“N2D Method” the web-based decision model or judgement protocol methodology using the NeedRank algorithm and supplied, created or developed by or on behalf of Subsector, and any other related documentation or material supplied, created or developed by or on behalf of Subsector in conjunction with that product and/or methodology;

“N2D Method Content” any information and materials (including works of authorship, files, processes, systems, ideas, know-how, concepts, methodologies, flowcharts, manuals, data, databases, digital content, database structures, content, descriptions, documents, notes, records, results, reports, text, research, lists, diagrams, artwork, designs, sketches, models, photographs, drawings, plans, specifications, images, logos, styles and graphics (in whatever form and on whatever media)) provided by Subsector from time to time as part of the N2D Method;

“Needs Matrix” the visual representation of the relative priority of Customer needs created using the NeedRank algorithm;

“Negligence” has the meaning given to it in Clause  16.10.2;

“Online Form” the online registration form as stipulated on the Website which describes Subsector’s customer;

“Party” either Subsector or the Customer;

“PAYG Service” the provision by Subsector of access to the N2D Method on the creation of a Needs Matrix on a pay-as-you-go (PAYG) model, and which shall include the Basic Support Service;

“PAYG Service Fee” the fee payable by the Customer to Subsector for the PAYG Service on creation of a Needs Matrix or expiry of the Free Trial Period (as applicable);

“Project” the use of the N2D Method for a particular project or scenario created by the Customer through its Customer Account on the Hosted System (as shall be determined by Subsector in its sole discretion);

“Rates” Subsector’s standard time and materials rates from time to time; as uplifted in accordance with this Agreement and also uplifted in accordance with Subsector’s standard percentage uplifts for performing any services required outside of Subsector’s normal working hours;

“Services” the Hosted Service, the Support Services and the Training Service;

“Subscription Service” the provision by Subsector of access to the N2D Method for an unlimited number of Projects and which shall include the Basic Support Service;

“Subscription Service Fee” the fee payable by the Customer to Subsector for the Subscription Service;

“Subscription Term” the subscription period (if any) selected by the Customer and as may be more specifically set out on the Website commencing on the later of either the Commencement Date or expiry of the Free Trial Period (as applicable);

“Subsector” Subsector Ltd, a company incorporated and registered in England and Wales with company number 09013900, whose registered office is at Kemp House, 152-160 City Road, London, EC1V 2NX;

“Support Services” the Basic Support Service and the Advanced Support Service;

“Term” has the meaning given to it in Clause 17.1;

“User” any user (with the exception of a Client User) of the N2D Method who is authorised by the Customer to use or access the N2D Method and N2D Method Content in accordance with this Agreement;

“VAT” any tax introduced pursuant to a direction of the Council of the European Community relating to turnover taxes including value added tax as provided for in the Value Added Tax Act 1994 and supplemental legislation (whether delegated or otherwise), any tax of a similar nature which any be substituted for or levied in addition to it and any sales tax;

“Website” Subsector’s website at n2dmethod.com;

“Year” a full or part period of 12 months commencing on the Commencement Date or on an anniversary of the Commencement Date;

1.2 references to “Clauses” are to clauses of these Terms and Conditions;

1.3 the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;

1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;

1.5 references to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 19 unless otherwise specified) includes electronic mail (but not, for the avoidance of doubt, other forms of electronic messaging service, such as text messages and other instant messaging services);

1.6 references to “includes” or “including” or like words or expressions shall mean without limitation; and

1.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

2. Agreement

2.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Customer before, on or after the date of this Agreement.

2.2 Save as expressly provided herein, this Agreement shall supersede and operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated herein except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter.  Each Party acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.

2.3 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.

2.4 If the Customer provides Subsector with a purchase order for the Services, the purchase order shall be purely for the Customer’s administrative purposes only and shall not form part of this Agreement.

2.5 Except as expressly provided otherwise in this Agreement, no amendment to this Agreement shall be binding unless it is agreed in writing signed by each of Subsector and the Customer and expressed to be for the purpose of such amendment.

2.6 The Customer shall only ever use the most up-to-date version of the N2D Method Content as is available on the Website and/or through its Customer Account and shall not use previous versions of the N2D Method Content.

2.7 Subject to Clause 2.6, the Customer shall ensure that Subsector’s proprietary notice (e.g. “© Subsector [date stipulated by Subsector]” All rights reserved”) or, where indicated, the notice of Subsector’s licensors must clearly appear in all electronic or hard copies of any N2D Method Content or extracts from the Website.

2.8 Any rights in respect of the N2D Method Content or Services not expressly granted in this Agreement by Subsector are reserved.

2.9 If the Customer is in breach of this Agreement or this Agreement has been suspended or terminated, then Subsector may disable access to any of the Services at any time (including access to the Customer Account) and without notice whether by use of a code, by disabling access on its servers, by remote access or by physical attendance at any place where the Services are being accessed from or otherwise.

2.10 This Agreement shall be legally formed and the Parties shall be legally bound when Subsector creates a Customer Account for the Customer. In any event, use of any of the Services by the Customer, its employees or Users and/or any Client User shall constitute acceptance of the terms and conditions of this Agreement. Subsector shall be under no obligation to accept any request for creation of a Customer Account on submission of an Online Form by a Customer.

3. Customer Account

3.1 To use and access any of the Services, the Customer must have access to the Internet and register for a Customer Account. In order to create a Customer Account, the Customer must complete the Online Form, including any username and password details. The Customer shall be responsible for the safekeeping of its username and password and maintaining their confidentiality at all times.

3.2 The Customer shall only submit the Online Form to Subsector as an organisation or individual seeking to use any of the Services for business purposes only. The Services are not intended for consumer use or anyone under the age of 18 years old. The Customer acknowledges and agrees that is entering into this Agreement on a business to business basis. Subsector shall be entitled to classify and treat the Customer as a business customer at all times.

3.3 Subject to Clause 6.3, the Customer shall not permit any other person to access or use the Services and/or its Customer Account using its log-in, username and/or password credentials.

3.4 The Customer shall inform Subsector immediately of any unauthorised use of any password, Customer Account or other breach of security of which the Customer becomes aware.

3.5 Subsector may suspend the Customer’s access to any Services and/or its Customer Account if it reasonably believes the access to be unauthorised and require the Customer to select a new username and/or password. Subsector shall inform the Customer in writing that it is doing so and the remedial steps required for the Customer to reactivate its Customer Account.

3.6 Subsector reserves the right to edit, amend or issue new usernames and passwords or require the Customer or Users to change a username or password at any time.

3.7 Subsector reserves the right to delete at any time any Customer Account for which the Free Trial Period has ended and none of the Services have been selected on a paid-for basis by the Customer within a reasonable time of expiry of the Free Trial Period and terminate this Agreement with immediate effect without any Liability or notice to the Customer of such termination or deletion.

4. Access and Use of the Services

4.1 Subsector may update the Services and the N2D Method Content from time to time.  Subsector may make reasonable changes to any features of any of the Services available to the Customer from time to time.

4.2 The Customer shall, and shall procure that any User and/or Client User shall:

4.2.1 not interfere with any other person’s use of the Services or otherwise act in a way that negatively affects another customer’s or user’s use of the Services;

4.2.2 not cause any of the Services to be interrupted, damaged, rendered less efficient or in any way impaired; and

4.2.3 not do anything contrary to Subsector’s interests.

5. Free Trial

5.1 Subsector may, at its sole discretion, offer the Customer access to the Subscription Service and associated N2D Method Content on a free trial basis in order for the Customer to trial the Subscription Service.  Existing customers of Subsector shall not be entitled to access any of the Services on a free trial basis.

5.2 Free trial eligibility is determined by Subsector at its sole discretion and Subsector may limit eligibility, including to prevent free trial abuse. Subsector reserves the right to revoke the free trial at any time and place any Customer Account on hold in the event that Subsector determines that the Customer may not be eligible or may be abusing the free trial in any way.

5.3 Subsector may use information such as device ID, method of payment or a Customer Account email address or username to determine eligibility for a free trial.

5.4 On expiry of the Free Trial Period (if any), Subsector shall request that the Customer select a Hosted Service on a paid-for basis from the options available at that time as specified on the Website and/or Customer Account. The Customer shall select and pay for its selected Hosted Service through its Customer Account or inform Subsector that it wishes to terminate this Agreement through either selection of the cancellation option in its Customer Account (if available) or by contacting Subsector directly in writing.

5.5 The Customer acknowledges and agrees that its ongoing use of the Services after expiry of the Free Trial Period is dependent on the type of Hosted Service purchased by the Customer. The Customer shall have no access to a Project created during the Free Trial Period on selection of the PAYG Service until payment of the PAYG Service Fee is completed in cleared funds. For the avoidance of doubt, there shall be no restriction on a Customer’s access to Projects created during the Free Trial Period on successful selection, payment and access to the Subscription Service.

5.6 Failure by a Customer to select a paid-for Hosted Service on expiry of the Free Trial Period and complete the requisite payment details shall grant Subsector the right to suspend the Customer Account or terminate this Agreement with immediate effect. The Customer shall have no access to the N2D Method (including any associated Projects) on suspension of its Customer Account or termination of this Agreement. Subsector reserves the right to reactivate a Customer Account where the Customer selects and purchases a Hosted Service within 6 months of expiry of the Free Trial Period. Subsector cannot, and does not, guarantee that any associated Projects created and stored in the Customer Account prior to suspension shall be available, stored and/or accessible to the Customer or any associated Client User on reactivation by Subsector.

6. Hosted Service

6.1 In consideration of the Customer’s payment of the Subscription Service Fee and the Customer’s compliance with this Agreement, Subsector hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable licence for the Customer to access and use the N2D Method and N2D Method Content and to permit its Users to access and use the N2D Method and N2D Method Content by way of the Hosted Service, in each case only during the Term and in accordance with this Agreement.

6.2 In consideration of the Customer’s payment of the PAYG Service Fee and the Customer’s compliance with this Agreement, Subsector hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable licence for the Customer to access and use the N2D Method and N2D Method Content and to permit its Users to access and use the N2D Method and N2D Method Content by way of the Hosted Service, in each case only for the duration of each Project to which the Needs Matrix applicable to the relevant PAYG Service Fee applies (which shall be determined by Subsector in its sole discretion) and in accordance with this Agreement.

6.3 The Customer shall use the N2D Method and N2D Method Content for the Customer’s ordinary internal business purposes and shall not make the N2D Method or N2D Method Content available for use or access by any third party, except to the extent that Subsector expressly permits in writing. For the avoidance of doubt, this does not prevent the Customer from granting read-only access to a Client User or sharing the results or output of the N2D Method with a Client User.

6.4 The Customer may enable each User to print off extracts from the N2D Method in hard copy, but solely for their own use in accordance with this Agreement and provided that any and all copyright and proprietary notices are kept intact.  The Customer shall not otherwise copy, reproduce, alter, vary or modify the N2D Method or N2D Method Content or use the N2D Method or N2D Method Content or transfer the N2D Method or N2D Method Content to any third party nor allow a User to do so.

6.5 Any rights in respect of the N2D Method or N2D Method Content not expressly granted in this Agreement by Subsector are reserved.

6.6 The Customer shall ensure that the copyright and trade mark notices of Subsector or its Affiliates or licensors prominently appear on all N2D Method Content, as well as content created and used by the Customer and/or its Users, including when making reference to the N2D Method in public presentations or pitches.  The Customer shall not change, remove or obscure any labels, plates, insignia, lettering or other markings which are on the N2D Method and/or N2D Method Content.

6.7 The integrity of the N2D Method may be protected by technical protection measures so that the Intellectual Property Rights in the N2D Method are not misappropriated.  The Customer must not attempt in any way to remove or circumvent such measures, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in its possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such measures.

6.8 The Customer shall permit Subsector and Subsector’s licensors, agents, representatives, subcontractors and employees at all reasonable times and on reasonable prior written warning to enter such places and inspect such equipment under the Customer’s or its Affiliates or Users or its or their agents’, employees’, or contractors’ control to verify that the Customer is complying with the terms of this Agreement and that it and its Affiliates and Users and its and their agents, employees and contractors are not infringing Subsector’s or Subsector’s licensors’ Intellectual Property Rights.  Each Party shall bear its own expenses in relation to such audit, unless the audit shows that the Customer or its Affiliates or Users or its or their agents or employees or contractors have been acting in breach of this Agreement or have been infringing Subsector’s or Subsector’s licensors’ Intellectual Property Rights in which case the Customer shall instead reimburse Subsector’s and Subsector’s licensors’ reasonable expenses of such audit.

6.9 If the Customer is in breach of this Agreement (including for late payment of a Fee) or the Customer or its Affiliates or Users or its or their agents or employees or contractors are infringing Subsector’s or Subsector’s licensors’ Intellectual Property Rights, Subsector may, without prejudice to any of its right pursuant to the terms and conditions of this Agreement, disable access to the Hosted Service under this Agreement at any time and without notice whether by use of code, by remote access or by physical attendance at such places referred to in Clause 6.8.

7. Basic Support Services

7.1 Due to the static nature of the Basic Support Service, Subsector cannot guarantee that the Basic Support Service will include all answers to the questions which the Customer may have from access to the Hosted Service or in relation to the specific circumstances of the Customer.

7.2 The Customer shall report any problems or errors to Subsector through the Website (or using the details provided to the Customer on the Website, which Subsector may update from time to time) giving full details of: (a) the Customer’s information; (b) any relevant User information; (c) a full description of the problem or error; and (d) any other relevant information reasonably requested by Subsector.

7.3 Upon request, Subsector shall provide the Basic Support Service during Business Hours and use its reasonable endeavours to respond to a support request received through the Basic Support Service within a reasonable time, but Subsector cannot guarantee any particular result or outcome nor within any particular time. In particular, Subsector may need to obtain support in turn from third party subcontractors who assist Subsector with provision of the Hosted Service.

7.4 Subsector shall use its reasonable skill and care in providing the Support Services, but other than that the Support Services are provided on an “as is” and “as available” basis.  The Customer shall ensure that all acts and omissions in relation to any operational or live Data are conducted by the Customer, and Subsector shall not have any responsibility or Liability in relation to the same.

7.5 Subsector shall have no Liability for a failure to provide the Basic Support Service where any problems or errors result from: (a) use of the N2D Method and/or N2D Content contrary to Subsector’s instructions or this Agreement (b) the Customer’s or User’s Negligence; or (c) a malfunction of hardware or any software (other than the N2D Method or the Hosted System itself and any other software which Subsector may have provided the Customer in connection with the N2D Method or the Hosted System).

8. Customer’s General Obligations

8.1 The Customer undertakes that:

8.1.1 it will keep the access mechanism to the N2D Method provided to it by Subsector strictly confidential and shall not be disclosed to any third party, without Subsector’s prior written consent;

8.1.2 it will use all reasonable endeavours to prevent any access to or use of the N2D Method by anyone other than the Customer;

8.1.3 it shall be liable for any use of or access to the N2D Method using the access mechanism provided to it by Subsector, including by way of a web link and/or username and password;

8.1.4 the User is at all times an employee, officer, director, contractor (acting in a similar role to an employee) or authorised representative of the Customer;

8.1.5 where the Customer permits a Client User to access the N2D Method and/or N2D Method Content pursuant to the terms of this Agreement, it shall be on a read-only basis and the Customer shall procure that the Client User shall not actively enter any live information and/or Data into the N2D Method or Hosted System;

8.1.6 it shall take such back-ups of Data as it needs in order to ensure that it has sufficient access to the Data with the frequency that it requires; and

8.1.7 it shall not use or access the N2D Method for any illegal or unlawful purpose, or any purpose which may bring Subsector, or its business, products or the services provided by  Subsector under this Agreement, into disrepute.

8.2 The Customer shall:

8.2.1 inform Subsector in writing immediately if it becomes aware or suspects that the N2D Method is being used or accessed by anyone other than the relevant User in accordance with the terms of this Agreement or by anyone who is no longer a User, in which case Subsector shall be entitled to disable access to and use of the N2D Method without notice to the Customer or User in addition to any other rights and remedies it may have;

8.2.2 maintain access to the Hosted System through its telecoms or Internet service providers.  Subsector is not responsible for any connections from the Customer’s system to the Hosted System;

8.2.3 be responsible for ensuring that, and hereby warrants and undertakes to Subsector that, the Data and the use and sending of it by the Customer and Users, and the use and processing of Data by Subsector to perform the Hosted Service in accordance with these Terms and Conditions (or any privacy policy or notice in place between Subsector and the Customer from time to time) or by the Customer:

(a) conforms in all respects with all applicable laws, rules, regulations, bye-laws and codes of practice;

(b) does not infringe the privacy rights or Intellectual Property Rights of any third party;

(c) is not defamatory, malicious, abusive, obscene, indecent, discriminatory or harassing;

(d) does not impose an unreasonable or disproportionate large load on Subsector’s infrastructure or Hosted System;

(e) does not interfere with another customer’s or user’s use of the Hosted Service; and

(f) does not contain any Contaminants that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and

8.2.4 pay Subsector for all losses, damages, costs and expenses reasonably suffered or incurred by Subsector (including loss of revenue) as a result of any unauthorised use of or access to the N2D Method or any Customer Account caused by the Customer’s failure to comply with, or breach of, this Agreement.

8.3 Without prejudice to the other rights and remedies of Subsector, Subsector reserves the right to remove or amend any such software, files, Data or material which would contravene these prohibitions.

8.4 The Customer shall (and shall procure that its Affiliates and Users and authorised representatives and its and their agents, employees and contractors shall) promptly comply with all reasonable requests of Subsector in connection with this Agreement.

8.5 Subsector may specify certain Customer Third Party Software that the Customer needs as a minimum in order to use and access the N2D Method, but it is the Customer’s responsibility to review, obtain and pay for further functionality and configuration as it needs in order to meet its own particular operational requirements, including as to access, speed and performance of use.

8.6 Subsector shall not be responsible for providing any integration, installation, configuration, customisation, development, consultancy, testing, implementation or training services except to the extent that any written agreement between the Parties specifically provides for Subsector to do so.  Except to the extent otherwise agreed between the Parties in writing, integrating, installing, configuring, customisation, development, consultancy, testing, implementation and training shall be the Customer’s responsibility and the Customer shall comply with any usage instructions (including environmental and operating conditions) supplied by Subsector or any supplier of Third Party Software.

9. Warranties and Disclaimers

9.1 Subsector warrants that:

9.1.1 subject to Clause 9.3, it shall use its reasonable endeavours to make available the Hosted Service;

9.1.2 it shall use its reasonable skill and care in providing the Services; and

9.1.3 it has all necessary rights, permissions and consents to enter into this Agreement.

9.2 Save as set out in Clause 9.1, Subsector gives no warranty:

9.2.1 as to the accuracy, completeness or suitability of the N2D Method or N2D Method Content, or that the Hosted Service will meet any of the Customer’s or its Users’ present or future specific individual needs or requirements;

9.2.2 that the Hosted Service will be compatible with the Customer’s IT systems or equipment;

9.2.3 that the Hosted Service will function as specified by Subsector in the event of a failure to operate the N2D Method and/or N2D Method Content in accordance with the instructions of Subsector; or

9.2.4 that the Hosted Service will be uninterrupted or error-free or that it will be available at any particular speed. In addition, if a third party supplier of hosting services to Subsector suspends provision of access to its servers at any time, the provision of the Hosted Service by Subsector may be suspended.

9.3 Subsector shall use its reasonable endeavours to keep uptime during Business Hours of 99% over any three consecutive calendar month period and minimise downtime, but it may be necessary to suspend or restrict the Hosted Service at any time for any reason including for any urgent or planned maintenance.

9.4 Subsector does not warrant that the Hosted Service or N2D Method will meet any individual requirements of the Customer (other than any requirements specifically set out in this Agreement. The Customer is responsible for anything that it needs to obtain from someone other than Subsector. Except for any matter upon which Subsector specifically agrees in writing with the Customer to advise or do, Subsector shall not be responsible or have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else.

9.5 Subsector shall use its reasonable endeavours to ensure that the information and ideas contained, suggested or referenced in the N2D Method and N2D Method Content are accurate and up-to-date. The N2D Method and N2D Method Content are to be used for general guidance only.  The Customer agrees that it is its responsibility to obtain professional or specialist advice before taking, or refraining from, any action on the basis of the N2D Method or any N2D Method Content.

9.6 Subsector may in its absolute discretion from time to time either host the Data and/or the Hosted System on its own servers or use third party suppliers to do so in whole or in part.  The Customer acknowledges that Subsector may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements on the Customer or reasonably restrict rights of the Customer, due to the requirements of the third party suppliers.  Where reasonably practicable, Subsector will endeavour to give the Customer reasonable warning.

9.7 Unless otherwise agreed in writing in advance between the Parties, Subsector shall provide all Services in the English language only.  Subsector shall not be responsible for any translations from English.

9.8 Except where expressly provided for within these Terms and Conditions, Subsector excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.

9.9 When Subsector provides the Hosted Service, it is dependent on the Data provided by or on behalf of the Customer or Users. To the extent permitted by law, Subsector does not warrant and it excludes all Liability in respect of the accuracy, completeness, currency, fitness for purpose or legality of any Data supplied to Subsector or the Hosted System which may be accessible through the Hosted Service.

9.10 Subsector does not have any responsibility for any Data lost or corrupted during the transfer between submission by a User and arriving at the Hosted System, or between the Hosted System and receipt by a User, including from the transfer of Data over communications networks and facilities not within its control,  such as the internet. Although Subsector uses a firewall and takes steps against Contaminants within the Hosted Service through virus and content filtering software, Subsector cannot guarantee 100% security and shall not have any Liability for damage to, Contaminant infection or unauthorised access to, the N2D Content or any computer equipment, software, data or other property.  Subsector shall also not have any Liability for the actions of third parties in breaching any security measures.

10. Intellectual Property Rights

10.1 The Parties acknowledge that, as between them:

10.1.1 Subsector and its licensors own all Intellectual Property Rights in the N2D Method and N2D Method Content, whether or not any of the N2D Method and/or N2D Method Content are created, designed or adapted at the specific request of the Customer.  The Customer shall not have any rights over or to use the N2D Method and/or N2D Method Content other than as expressly provided under this Agreement; and

10.1.2 the Customer and its Affiliates and Users own all Intellectual Property Rights in the Data.  Subsector shall not have any rights over or to use the Data other than to provide access through the Hosted Service under this Agreement.

10.2 To the extent that Intellectual Property Rights in the:

10.2.1 N2D Method and/or N2D Method Content may not originally vest in Subsector as contemplated under this Agreement, the Customer hereby irrevocably assigns, transfers and conveys to Subsector all Intellectual Property Rights, title and interest therein.  The Customer shall give Subsector all reasonable assistance and execute all documents necessary to assist or enable Subsector to perfect, preserve, register and record its rights in such Intellectual Property Rights;

10.2.2 Data may not originally vest in the Customer as contemplated under this Agreement, Subsector hereby irrevocably assigns, transfers and conveys to the Customer all Intellectual Property Rights, title and interest therein.  Subsector shall give the Customer all reasonable assistance and execute all documents necessary to assist or enable the Customer to perfect, preserve, register and record its rights in such Intellectual Property Rights.

10.3 The Customer hereby grants to Subsector a royalty-free, worldwide, non-exclusive, assignable, sublicensable licence to use the Data for the purposes of performing this Agreement and for benchmarking and/or general reporting/preparation of aggregate reports on the use of the N2D Method by its customers without specific reference to the Customer’s identity or the Customer’s Confidential Information.  Subject to anything else to the contrary in this Agreement, Subsector shall not use the Data for any other purpose without the Customer’s express prior written consent.

10.4 If either Party becomes aware of any improper or wrongful use of the Intellectual Property Rights owned or used by the other Party, that Party shall forthwith inform the other of such use.  Each Party shall if requested assist the other Party (at the other Party’s cost) in taking any steps in connection with the protection or defence of the Intellectual Property Rights owned or licensed by the other Party as the other Party may determine.

10.5 Subject to the rest of this Agreement, Subsector shall indemnify and keep fully indemnified the Customer against any and all liabilities, losses, penalties, damages, charges, demands, actions, proceedings, judgments, costs and expenses which the Customer may incur or suffer as a result of any claim brought against the Customer by a third party alleging infringement of its Intellectual Property Rights as a result of the use of the N2D Method by the Customer, provided that:

10.5.1 the Customer gives notice to Subsector of any claims or proceedings without undue delay following receipt of them;

10.5.2 the Customer makes no admission of liability and gives Subsector sole authority to defend or settle the claims or proceedings at Subsector’s cost and expense;

10.5.3 the Customer gives Subsector all reasonable help in connection with the claims or proceedings, the Customer’s reasonable cost and expense to be borne by Subsector; and

10.5.4 the claim has not arisen as a result of the Customer using or combining the N2D Method and/or N2D Method Content with any equipment, programs or materials not supplied by Subsector (including Data), or to the extent caused by Customer Third Party Software.

10.6 Subsector shall have no obligation under Clause 10.5 to the extent that any alleged infringement arises from:

10.6.1 any open source software within the Hosted Service, including within the N2D Method and/or N2D Method Content;

10.6.2 the combination or incompatibility of the N2D Method and/or N2D Method Content with any computer hardware, operating system or third party software (other than the Hosted System);

10.6.3 failure to operate the N2D Method in accordance with this Agreement or any other agreement between the Parties (or Subsector’s written instructions);

10.6.4 operation of the N2D Method by unauthorised persons;

10.6.5 any of the Hosted Service created, developed, customised or altered in accordance with the Customer’s instructions or designs (in which case the Customer shall instead indemnify Subsector on the same basis as under Clause 10.5); or

10.6.6 any breach of any of the terms of this Agreement or any other agreement between the Parties or any negligent, wilful or fraudulent act or omission of or by the Customer or its officers, employees, agents, contractors or customers.

10.7 In dealing with any claim for infringement of a third party’s Intellectual Property Rights, Subsector may at its own expense and option:

10.7.1 procure the right for the Customer to continue using the N2D Method;

10.7.2 make any changes to the N2D Method without materially reducing the functionality of the N2D Method; or

10.7.3 refund a fair proportion of the applicable Fee paid to Subsector by the Customer for the Hosted Service (to take account of any use of the N2D Method by the Customer), in which case this Agreement shall automatically terminate.

10.8 The Customer shall use all reasonable endeavours to mitigate the effects on Subsector under this Clause 10.

10.9 This Clause 10 states Subsector’s entire Liability to the Customer in respect of the infringement of the Intellectual Property Rights of any third party.

11. Advanced Support Service

11.1 Upon request, Subsector may from time to time provide Advanced Support Service for Customers using the N2D Method. The purpose of the Advanced Support Service is to help Customers create and run Projects using suggestions and/or advice from Subsector as an external consultant. This can include Projects with Customers, their Users and their Client Users.

11.2 Subsector shall provide the Customer with a proposal for the Advanced Support Service Fee on receipt and acceptance by Subsector of a request by the Customer for the provision of the Advanced Support Service. The Advanced Support Service Fee shall be based on the nature and complexity of the request and associated Advanced Support Service requirements. The Advanced Support Service Fee quote must be accepted by the Customer before Subsector shall commence the Advanced Support Service.

11.3 The Advanced Support Service shall be invoiced on acceptance of the Advanced Support Service Fee by the Customer.

11.4 Subsector shall provide the Advanced Support Service during Business Hours and use its reasonable endeavours to fulfil the Customer’s request for the Advanced Support Service within a reasonable time, but Subsector cannot guarantee any particular result or outcome nor that the Advanced Support Service shall be completed and/or provided within any particular time. The provision of the Advanced Support Service shall be subject to the terms of this Agreement at all times.

12. Training and Self-Accreditation

12.1 The Customer acknowledges that the N2D Method may not be able to be used adequately unless Users have received adequate training, including successful completion of the self-accreditation course and/or documentation provided on the Website and/or through the Customer Account by Subsector from time to time. The Customer shall ensure that its personnel (and in particular any personnel who may be the point of contact between the Customer and Subsector relating to any N2D Method issues) understand how to use the N2D Method and have received training (and which shall include successful completion of the self-accreditation course and/or documentation provided on the Website and/or through the Customer Account by Subsector from time to time) to any level reasonably required or recommended by Subsector before use of the N2D Method.

12.2 The Customer shall ensure that all personnel using the N2D Method have adequate competence, knowledge and skill to interpret the training (including any self-accreditation documentation) provided by Subsector from time to time.

13. Advanced Training Service

13.1 In respect of the Advanced Training Service to be provided by Subsector, Subsector may stipulate the maximum number of attendees at any one Advanced Training Service session. Subsector may also stipulate different levels of training for different levels of Users.

13.2 The Customer shall be responsible for providing as much advanced written warning as practicable in the circumstances of any special requirements relating to any attendees.  Subsector shall use its reasonable endeavours to accommodate such needs.

13.3 Except to the extent that this Agreement expressly provides anything to the contrary Subsector may charge for all time involved with providing any training (whether provided in person or via a remote access mechanism) (including preparation and travel time) on a time and materials basis at the Rates.

14. Fees

14.1 Where there are Fees payable from the Customer to Subsector:

14.1.1 the Customer shall pay to Subsector the PAYG Service Fee via the payment mechanism stipulated on the Website each time a Needs Matrix is created by the Customer (or a User); and

14.1.2 the Customer shall pay to Subsector the Subscription Service Fee via the payment mechanism stipulated on the Website on the Commencement Date (or expiry of the Free Trial Period, as applicable) and on the closest Business Day of each calendar month anniversary of the Commencement Date (or expiry of the Free Trial Period, as applicable) thereafter for the Subscription Term. The Subscription Service Fee shall be automatically renewed unless terminated in accordance with the terms of this Agreement. The Customer shall ensure that it has adequate funds in its selected bank account in advance of each Subscription Service Fee payment date;

14.1.3 the Customer shall pay to Subsector the Advanced Training Service Fee using any payment mechanism stipulated by Subsector;

14.1.4 if any Advance Support Service Fee represents a capped amount (such as a capped amount of days), Subsector may invoice the Customer for any additional time on a time and materials basis at the Rates monthly in arrears unless otherwise agreed in writing between the Parties;

14.1.5 all other Fees shall be payable according to the time actually spent by Subsector, at the Rates then in force when the time was spent; and

14.1.6 the Customer shall pay Subsector for the expenses (if any) incurred within five Business Days of the date of Subsector’s proper invoice.

14.2 The Customer shall complete all payment details required by Subsector to allow for payment of either the PAYG Service Fee or the Subscription Service Fee in accordance with Clause 14.1 in advance of access being granted to the Customer by Subsector to the Hosted Service on a paid-for basis.

14.3 Subject to Clause 14.1, the Customer shall pay the Advance Support Service Fee in full within 30 days of date of receipt of Subsector’s invoice.

14.4 Subsector may increase the Fees and Rates in respect of any Fees not yet paid by no less than one month’s prior written warning, provided that no increase:

14.4.1 shall be implemented in the same calendar year as the implementation of any preceding increase; or

14.4.2 shall be at more than 5% or (if higher) the previous annual all-items percentage increase figure in the retail prices index (or, if that index ceases to exist, its closest replacement index) announced by the UK government before Subsector’s increase.

14.5 All Fees due to Subsector are exclusive of VAT and other sales or import or export duties or taxes (if applicable) which the Customer shall pay to Subsector in addition at the same time as payment of the Fees and expenses.

14.6 The Customer shall pay Subsector by any payment method reasonably stipulated by Subsector from time to time.  No payment shall be considered paid until it is received by Subsector in cleared funds in full.

14.7 Payment shall be in the currency in force in England from time to time or in such other currency as is stipulated for the Fee and/or expenses.

14.8 Payment of all sums due to Subsector under this Agreement shall be made by the Customer in full without any set-off, deduction or withholding whatsoever.

14.9 If the laws of any part of the territory where the Customer is based require the Customer to withhold tax on any payment which the Customer is obliged to make to Subsector under this Agreement, the Customer shall:

14.9.1 obtain a proper receipt and discharge for the tax so deducted and forward it without delay to Subsector;

14.9.2 do all such other things and take such other steps as may be reasonably required to enable Subsector to obtain any tax credit which may be available to it; and

14.9.3 in the event that any taxes deducted cannot be reclaimed, make up to Subsector any shortfalls in payment attributable to such tax deductions.

14.10 If the Customer is late in paying any part of any monies due to Subsector under this Agreement or any other agreement between Subsector and the Customer, Subsector may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or bye-law) do any or all of the following:

14.10.1 charge interest and claim other costs on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and

14.10.2 suspend the performance of this Agreement and any other agreement between the Parties until payment in full has been made; and

14.10.3 suspend any right of the Customer to use the Hosted Service or its Customer Account.

15. Confidentiality

15.1 Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:

15.1.1 for the purposes of the proper performance of this Agreement; or

15.1.2 as otherwise permitted by this Agreement; or

15.1.3 with the prior written consent of the other Party.

15.2 Where one Party discloses Confidential Information of the other Party to its employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer, it shall do so subject to obligations equivalent to those set out in this Clause 15.  Each Party shall use all reasonable endeavours to ensure that any such employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer complies with such obligations.

15.3 Each Party shall at all times:

15.3.1 adopt, retain and keep updated adequate procedures and physical security measures which protect the Confidential Information of the other Party from inadvertent disclosure or release to unauthorised persons; and

15.3.2 hold the Confidential Information of the other Party in strict confidence and in any event with no less standard of confidentiality than that which it applies to its own confidential information.

15.4 The obligations of confidentiality in this Clause 15 shall not extend to any matter which either Party can show:

15.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or

15.4.2 was in its written records prior to receipt; or

15.4.3 was independently developed by it; or

15.4.4 was independently disclosed to it by a third party entitled to disclose the same.

15.5 If either Party is required to disclose the Confidential Information of the other Party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the Party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other Party as much warning thereof as practicable and inform in writing and consult with the other Party and, at the other Party’s request and cost, fully co-operate with and assist that other Party in opposing any such disclosure.

15.6 Neither Party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) or as is required by law.

15.7 Subject to Clause 15.6, Subsector may identify the Customer as its licensee or customer and the type of Licence provided by Subsector to the Customer, provided that in doing so Subsector shall not (without the Customer’s prior written consent) reveal any Confidential Information of the Customer.

15.8 The obligations of this Clause 15 shall continue after termination of this Agreement for whatever reason.

16. Limitation of Liability

16.1 This Clause 16 prevails over all other Clauses and sets forth the entire Liability of each Party, and the sole and exclusive remedies of the other, in respect of:

16.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any goods, services, deliverables or software in connection with this Agreement; or

16.1.2 otherwise in relation to this Agreement or entering into this Agreement.

16.2 Neither Party excludes or limits its Liability for:

16.2.1 its fraud; or

16.2.2 death or personal injury caused by its Negligence; or

16.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or

16.2.4 any infringement of the other Party’s or the other Party’s Affiliates’ Intellectual Property Rights; or

16.2.5 any other Liability which cannot be excluded or limited by applicable law.

16.3 Subject to Clause 16.2, neither Party accepts, and each Party hereby excludes, any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.

16.4 Subject to Clause 16.2, neither Party shall have Liability in respect of any:

16.4.1 indirect or consequential losses, damages, costs or expenses;

16.4.2 loss of actual or anticipated profits;

16.4.3 loss of contracts;

16.4.4 loss of use of money;

16.4.5 loss of anticipated savings;

16.4.6 loss of revenue;

16.4.7 loss of goodwill;

16.4.8 loss of reputation;

16.4.9 ex gratia payments;

16.4.10 loss of business;

16.4.11 loss of operation time;

16.4.12 loss of opportunity; or

16.4.13 loss of, damage to or corruption of, data (except to the extent that that Party specifically has a responsibility to prevent loss of, damage to or corruption of, data under this Agreement); whether or not such losses were reasonably foreseeable or the Party in default or its agents had been advised of the possibility of the other incurring such losses.  For the avoidance of doubt, Clauses 16.4.2 to 16.4.13 apply whether such losses are direct, indirect, consequential or otherwise.

16.5 Subject to Clause 16.2, and subject to any specific right or remedy expressly set out in this Agreement that explicitly provides that the following cap may be exceeded, the total aggregate Liability of each Party for all causes of action arising in each Year shall be limited to the greater of: (a) £10,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by the Customer to Subsector under this Agreement, in that Year.

16.6 The limitation of Liability under Clause 16.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.

16.7 For the avoidance of doubt, subject to Clause 16.5, Clause 16.4 does not prevent either Party from claiming for its wasted people time and wasted resource and correction costs reasonably incurred as a result of the other Party’s breach of this Agreement.

16.8 The Customer shall not limit its Liability for failure to pay the Fees.

16.9 The Customer acknowledges and accepts that Subsector only provides the Services to it on the express condition that Subsector will not be responsible for nor shall it have any Liability directly or indirectly for:

16.9.1 inaccuracies or errors in or omissions from any Data provided by the Customer or any User (including on any Online Form); or

16.9.2 any act or omission of the Customer or any User or any third party.

16.10 In this Agreement:

16.10.1 “Liability” means liability in or for breach of contract (including under an indemnity), tort (whether deliberate or not), Negligence, misrepresentation, breach of statutory duty, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including, without limitation, liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract); and

16.10.2 “Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).

17. Term and Termination

17.1 Subject to either Party having a right to earlier termination of this Agreement pursuant to any rights of termination under this Agreement, this Agreement will commence on the Commencement Date and will continue in force for either:

17.1.1 for the Subscription Service, for the Subscription Term and thereafter until either Party gives to the other no less than one months’ notice of termination of this Agreement (such notice not to expire any earlier than the date of expiry of the Subscription Term); or

17.1.2 for the PAYG Service, until either Party gives to the other no less than one months’ notice of termination of this Agreement, (the “Term”)

17.2 Subsector reserves the right to terminate this Agreement with effect from the end of the same calendar month in which notice is served should the Customer utilising the PAYG Service fail to create a Needs Matrix (as determined by Subsector in its sole discretion) for a period of 6 consecutive calendar months or longer.

17.3 Either Party may terminate this Agreement immediately by notice to the other Party if:

17.3.1 the other Party is in material breach of any of its obligations under this Agreement or any other agreement between the Parties which is incapable of remedy; or

17.3.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or

17.3.3 the other Party is in persistent breach of any of its obligations under this Agreement or any other agreement between the Parties; or

17.3.4 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts as they come due, or enters into any compromise or arrangement with any of 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), or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.

17.4 For the purposes of Clause 17.3, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to time to the reasonable satisfaction of the other Party.  Without prejudice to the status of any breach of any other provision of this Agreement, the Parties agree that any breach or infringement of the other Party’s Intellectual Property Rights or Confidential Information shall be considered a material breach which is not capable of remedy.

17.5 Subsector may terminate this Agreement immediately by notice to the Customer if the Customer is at least 10 Business Days’ late in paying any undisputed sums due under this Agreement or any other agreement between the Parties and Subsector has then given to the Customer at least a further five Business Days’ notice requiring the Customer to pay in full within such five Business Day (or, if Subsector desires, longer) period failing which Subsector may exercise its right to terminate under this Clause 17.5.

17.6 The Licence shall terminate if this Agreement expires or terminates.  Termination or expiry of this Licence shall automatically terminate any rights of any authorised Users to use the N2D Method and N2D Method Content.

17.7 Upon expiry or termination of the Licence for whatever reason:

17.7.1 Subsector shall cease to perform this Agreement;

17.7.2 the Customer shall immediately cease accessing the Services and cease using its Customer Account, and procure that its employees, officers and, where applicable, Client User(s) do the same;

17.7.3 the Customer shall deliver up to Subsector or at Subsector’s option permanently erase or otherwise destroy the N2D Content and any copies and replacements thereof, in its possession or under its control, and certify to Subsector by way of a written declaration, signed by an officer or other authorised individual of the Customer, that they have been destroyed; and

17.7.4 the owner of Confidential Information may at its option require the other Party to delete promptly all Confidential Information belonging to the Party requiring the action from any computer disks, tapes or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any such Confidential Information.  The owner of Confidential Information may require the other Party to provide a written declaration, signed by an officer or other authorised individual stating that there has been full compliance with this Clause 17.7.4.

17.8 For the avoidance of doubt, the Customer shall have no right to a refund (including on a pro-rata basis) for Services paid for but not received on termination or expiry of this Agreement by either Party and Subsector shall be under no obligation to comply with or execute any request for a refund (including on a pro-rata basis) by the Customer under any condition.

17.9 Termination or expiry of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.

17.10 Termination or expiry of this Agreement will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.

18. Force Majeure

18.1 Save for obligations in respect of payment of the Fees, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control including any act of God, actions or omissions of third parties (other than of Affiliates of the relevant Party seeking to rely on this Clause) (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, pandemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation (“Event of Force Majeure”), regardless of whether the circumstances in question could have been foreseen.

18.2 Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such written information to contain details of the circumstances giving rise to the Event of Force Majeure.

18.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.

18.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.

18.5 If performance of any obligations are delayed under this Clause 18, each Party shall nevertheless accept performance as and when the other Party shall be able to perform.

18.6 If the Event of Force Majeure continues without a break for more than three months, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall be liable to the other Party by reason of such termination.

18.7 If Subsector has contracted to provide identical or similar software, services or deliverables to more than one customer and is prevented from fully meeting its obligations to the Customer by reason of an Event of Force Majeure, Subsector may decide at its absolute discretion which contracts it will perform and to what extent.

19. Notices

19.1 Subject to Clause 19.3, any notice required or authorised to be given under this Agreement shall be in writing and shall be served by:

19.1.1 personal delivery;

19.1.2 overnight courier;

19.1.3 email; or

19.1.4 by facsimile,

addressed to the relevant Party at its address stated in this Agreement or at such other postal address, email address or facsimile number as is specified by the relevant Party to the other Party for this purpose from time to time or at the postal address, email address or facsimile number of the relevant Party last known to the other Party.

19.2 Subject to Clause 19.3, any notice given by:

19.2.1 personal delivery during Business Hours shall be deemed to have been served on the date the notice was provided (any notice served outside of Business Hours shall be deemed to have been served the next Business Day);

19.2.2 overnight courier shall be deemed to have been served two Business Days after the same shall have been despatched;

19.2.3 email during Business Hours shall be deemed to have been served on the date the email was sent (any email sent outside Business Hours shall be deemed to have been served the next Business Day); and

19.2.4 facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine and successful delivery notification,

and in proving such service it shall be sufficient to prove that the letter, email or facsimile was properly addressed or numbered and, as the case may be, despatched and signed for or an answerback signal received.

19.3 Any notice sent by email shall:

19.3.1 be sent in duplicate via personal delivery, overnight courier or facsimile no later than one Business Day after the same has been served by email; and

19.3.2 not be deemed served on the receiving Party where the Party seeking to serve notice receives any form of automated email response to such notice, including an out of office response, delivery failure notification or similar indication that the email notice has not been (or shall be) delivered and/or received by the receiving Party, as the case may be.

20. Assignment

20.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Agreement, Subsector may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company.  Subsector shall promptly give notice to the Customer of any such assignment.

20.2 The Customer shall not (or purport to) assign, sub-license, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of Subsector (such consent not to be unreasonably withheld or delayed).

21. Changes

21.1 Subsector may update these Terms and Conditions by providing the Customer with an updated copy of these Terms and Conditions either through the Customer Account or by email to the email address stipulated by the Customer in the Online Form. Unless the Customer terminates this Agreement through cancellation of the Service through its Customer Account (if available) or in writing to Subsector within 30 days of receipt of the updated Terms and Conditions from Subsector, the updated Terms and Conditions shall automatically take effect on the expiry of the 30 day period.

21.2 The Customer may request to change the selected Service at any time through its Customer Account (if available) or in writing to Subsector. Subsector reserves the right to reject or refuse any request to change the selected Service by the Customer.

21.3 Subject to Clauses 21.1 and 21.2, no change to the specific terms of this Agreement shall be binding unless it is agreed in writing by both Parties.

22. Dispute Resolution

22.1 The Parties will attempt in good faith promptly to resolve any dispute or claim arising out of or in relation to this Agreement in accordance with the following procedure:

22.1.1 The Parties shall use their best endeavours to negotiate in good faith and settle amicably any dispute or claim that may arise out of or relate to this Agreement (or its construction, validity or termination) (a “Dispute”).  For this purpose, a Dispute shall include a failure to agree any matter which in accordance with any provision of this Agreement is to be agreed between the Parties (except where such provision expressly provides to the contrary).  If a Dispute cannot be settled through negotiations by appropriate representatives of each of the Parties having authority to settle the matter, either Party may give to the other a notice (a “Dispute Notice”).  Within five Business Days of the Dispute Notice being given, the Parties shall each refer the Dispute to their senior representatives nominated by the managing director of each Party, who shall meet in order to attempt to resolve the Dispute.

22.1.2 If the Dispute is not settled by agreement in writing between the Parties within 10 Business Days of the Dispute Notice, either of the Parties may refer the Dispute to mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.  The mediation shall be conducted by a single mediator appointed by mutual agreement, or (failing mutual agreement within seven days of a notice from either Party to the other calling upon the other so to agree) by the Centre for Dispute Resolution.  Both Parties agree to co-operate fully with such mediator, provide such assistance as is necessary to enable the mediator to discharge his duties, and to bear equally between them the fees and expenses of the mediator.

22.1.3 The mediation shall be conducted in London in English.  The mediation shall be conducted without prejudice to the rights of any of the Parties in future proceedings.

22.1.4 If the matter has not been resolved by a mediation procedure within 60 days following referral of the Parties to the CEDR procedure or if the Dispute cannot be resolved using the processes and procedures set out above, then it shall be resolved by reference to the courts in accordance with Clause 23 (governing law and jurisdiction).

22.1.5 If the Dispute is substantially of a technical nature or financial, such dispute may be referred, with the written agreement of the Parties, to an expert, who shall be deemed to act as expert and not as arbitrator.  The expert shall be selected by mutual agreement or, failing such agreement, within 10 Business Days of a request by one Party to the other, shall be chosen by the President for the time being of the British Computer Society (or his nominee) or if Subsector reasonably determines that such matter relates primarily to financial matters, Subsector may elect that such expert may be appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales (or his nominee).  Decisions of the expert shall be final and binding and, except in the case of manifest error, not subject to appeal.  The fees of the expert shall be borne by the Parties in such proportion as may be determined by the expert.

22.1.6 If either Party does not agree with any Dispute being referred for mediation or determination in accordance with this Clause 22, then the Dispute shall be determined by the courts under Clause 23.6. For the avoidance of doubt, either Party may initiate proceedings without recourse to the process in this Clause 22.

23. General

23.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under this Agreement or at law.

23.2 If any Clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.

23.3 Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.

23.4 A person who is not a Party to this Agreement has no rights under any law to enforce any term of this Agreement.

23.5 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or its formation, shall be governed by, and construed in accordance with, the laws of England.

23.6 If both Parties are domiciled in the European Union or the United Kingdom, then subject to Clause 23.7, the Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with this Agreement or its subject matter or its formation (including non-contractual disputes or claims).

23.7 If both Parties are domiciled in the European Union or the United Kingdom, but as a consequence of any change in national or international law, judgments of the courts of England shall not be automatically enforceable in the jurisdiction in which the Customer is located, or such a change in law is planned or reasonably foreseeable, Subsector shall have the right to commence and pursue arbitration proceedings against the Customer under the LCIA Rules to settle any claim, dispute or matter of difference which may arise out of or in connection with this Agreement or its formation (including non-contractual disputes or claims). The LCIA Rules are deemed to be incorporated by reference into this Clause 23.7. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

23.8 If one or more of the Parties is domiciled outside of the European Union and the United Kingdom, any claim, dispute or matter of difference which may arise out of or in connection with this Agreement or its subject matter or its formation (including non-contractual disputes or claims) shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules. Those Rules are deemed to be incorporated by reference into this Clause 23.8. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

23.9 All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.

23.10 Nothing in Clauses 23.5, 23.6, 23.7 and/or 23.8 shall limit the right of a Party to take proceedings in any other court of competent jurisdiction to enforce or protect its Intellectual Property Rights or Confidential Information.