- D-Risk T/A EV-comply has developed the Software Application and platform which it makes available on a Software as a Service basis.
- The Customer wishes to use the Software Application and Service in its business operations.
- D-Risk T/A EV-comply has agreed to provide and the Customer has agreed to take and pay for the Software Application and Service subject to the terms and conditions of this Customer Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this Customer Agreement.
Agreement Term: has the meaning given in clause 12.1 (being the Minimum Term together with any subsequent Renewal Periods).
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in clause 2.2(e).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential to a relevant party.
Contract Details: means the Contract Details form attached to these terms and conditions.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer Data: the data inputted by the Customer or Authorised Users (including using the Mobile App) for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
D-Risk: means Platform D-Risk Limited T/A EV-comply , whose details are set out in the Contract Details.
Effective Date: the date of this Customer Agreement as set out in the Contract Details.
EULA: means the End User Licence Agreement in respect of the Mobile Application as updated or amended by D-Risk from time to time.
Fees: the fees payable by the Customer to D-Risk for the Services as set out in the Contract Terms.
Minimum Term: the initial term of this Customer Agreement (if any) as set out in the Contract Details.
Mobile Application: means any mobile application to be made available by D-Risk to authorised users via the Apple and Android platforms as part of the Services.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Privacy Notice: means D-Risk’s privacy notice in relation to the processing of personal data (as it may be amended by D-Risk from time to time) which is available at www.ev-comply.com.
Relevant Scheme: means , any applicable energy efficiency or related scheme which may be relevant to the use of the Services by the Customer.
Renewal Period: the period described in clause 12.1.
Services: the provision of the Software as a Service platform provided by D-Risk to the Customer under this Customer Agreement including, without limitation, any Mobile App.
Software: the online software applications provided by D-Risk as part of the Services together with the Mobile Application.
Support Services Policy: D-Risk’s policy for providing support in relation to the Services as made available at www.ev-comply.com or such other website address as may be notified to the Customer from time to time.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Customer Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2. Use of the Software
2.1 Subject to the Customer paying the Fees in accordance with clause 7.1, the restrictions set out in this clause 2 and the other terms and conditions of this Customer Agreement, D-Risk hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) where the Services are provided on a limited user basis, the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) where the Services are provided on a limited user basis, it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) use of the Mobile Application by any Authorised User shall be subject to the acceptance by the Authorised User of the EULA;
(d) each Authorised User shall keep a secure, unique, password for his use of the Services, and that each Authorised User shall keep his password confidential; and
(e) it shall maintain a written, up to date list of current Authorised Users and provide such list to D-Risk within 5 Business Days of D-Risk’s written request at any time or times.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and D-Risk reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Customer Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services if you are a competitor of D-Risk, or using the Services in order to evaluate them to assist you or another to build a product or service which competes with the Services; or
(c) use the Services to re-sell or otherwise provide the functionality of the Services to third parties; or
(d) subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify D-Risk.
2.6 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer unless specifically stated in the Contract Details.
3.1 D-Risk shall, during the Term, provide the Services to the Customer on and subject to the terms of this Customer Agreement.
3.2 D-Risk shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for any planned maintenance (of which D-Risk shall give the Customer as much notice as is reasonably practicable) or emergency maintenance.
3.3 D-Risk will, as part of the Services and at no additional cost to the Customer, provide the Customer with D-Risk’s standard customer support services during Normal Business Hours in accordance with D-Risk’s Support Services Policy in effect at the time that the Services are provided. D-Risk may amend the Support Services Policy in its sole and absolute discretion from time to time.
4. Customer data
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
4.2 D-Risk shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available at www.ev-comply.com or such other website address as may be notified to the Customer from time to time], as such document may be amended by D-Risk in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against D-Risk shall be for D-Risk to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by D-Risk in accordance with the archiving procedure described in its Back-Up Policy. D-Risk shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by D-Risk to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 4.9).
4.3 D-Risk shall, in providing the Services, ensure that it processes any Customer Data in accordance with D-Risk’s Privacy Notice. Where D-Risk carries out processing of personal data relating to the Customer or its employees or sub-contractors in the course of providing the Services this shall be processed in accordance with D-Risk’s Privacy Notice.
4.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
4.5 The parties acknowledge that:
(a) if D-Risk processes any personal data on the Customer’s behalf when performing its obligations under this Customer Agreement, the Customer is the controller and the D-Risk is the processor for the purposes of the Data Protection Legislation;
(b) the scope, nature and purpose of processing by D-Risk, the duration of the processing and the types of personal data and categories of data subject shall be as set out in this Customer Agreement and (where applicable) D-Risk’s Privacy Notice; and
(c) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and D-Risk’s other obligations under this Customer Agreement.
4.6 Without prejudice to the generality of clause 4.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to D-Risk for the duration and purposes of this Customer Agreement so that D-Risk may lawfully use, process and transfer the personal data in accordance with this Customer Agreement on the Customer’s behalf and, without limiting its obligations under this clause, shall not collect or otherwise process any personal data of any Customer unless the Customer has provided them with a GDPR compliant form of Privacy Notice.
4.7 Without prejudice to the generality of clause 4.4, D-Risk shall, in relation to any personal data processed in connection with the performance by D-Risk of its obligations under this Customer Agreement:
(a) process that personal data only on the documented written instructions of the Customer unless D-Risk is required by the laws of any member of the European Union or by the laws of the European Union applicable to D-Risk and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the D-Risk is relying on Applicable Laws as the basis for processing personal data, D-Risk shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit D-Risk from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or D-Risk has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) D-Risk complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) D-Risk complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Customer Agreement unless required by Applicable Law to store the personal data; and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and immediately inform the Company if, in the opinion of D-Risk, an instruction infringes the Data Protection Legislation.
4.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
4.9 The Customer consents to D-Risk appointing Amazon Web Services EMEA SARL as a third-party processor of personal data under this Customer Agreement. D-Risk confirms that it has entered with the third-party processor into a written agreement substantially on that third party’s standard terms of business which D-Risk confirms reflect the requirements of the Data Protection Legislation. As between the Customer and D-Risk, D-Risk shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.
4.10 D-Risk may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Customer Agreement).
5. D-Risk’s obligations
5.1 D-Risk agrees that the Services will be performed with reasonable skill and care.
5.2 Notwithstanding clause 5.1, D-Risk:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6. Customer’s obligations
6.1 The Customer shall:
(a) provide D-Risk with:
(i) all necessary co-operation in relation to this Customer Agreement; and
(ii) all necessary access to such information as may be required by D-Risk;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Customer Agreement, comply
(c) with all applicable laws and regulations with respect to its activities under this Customer Agreement;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Customer Agreement and shall be responsible for any Authorised User’s breach of this Customer Agreement;
(e) ensure that its network and systems comply with the relevant specifications provided by D-Risk from time to time for the use of the Services; and
(f) be, to the extent permitted by law and except as otherwise expressly provided in this Customer Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to D-Risk’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
6.2 The Customer agrees and acknowledges that the correct performance of the Software is dependent upon the information and data provided by the Customer being complete and accurate in all respects and that if such information and data is not complete and accurate the data validation functions of the Software will not operate correctly. D-Risk shall have no liability for any errors or failure of the Software arising from data provided by the Customer not being complete and accurate and free from errors in all respects.
7. Charges and payment
7.1 The Customer shall pay the Fees to D-Risk in accordance with this clause 7 and Annex A (Charges and Payment).
7.2 The Customer shall on the Effective Date provide to D-Risk valid, up-to-date and complete credit card details or approved purchase order information acceptable to D-Risk and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details to D-Risk, the Customer hereby authorises D-Risk to bill all Fees to such credit card.
7.3 If D-Risk has not received payment of any Fees within 30 days after the due date, and without prejudice to any other rights and remedies of D-Risk:
(a) D-Risk may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and D-Risk shall be under no obligation to provide any or all of the Services while the Fees concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this Customer Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 13.3(b), non-cancellable and non-credit
(d) are exclusive of value added tax, which shall be added to D-Risk’s invoice(s) at the appropriate rate.
7.5 D-Risk shall be entitled to increase the Fees at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Contract Details shall be deemed to have been amended accordingly.
8. Proprietary rights
8.1 The Customer acknowledges and agrees that D-Risk and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, this Customer Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services the Software.
8.2 D-Risk confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Customer Agreement.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Customer Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to clause 9.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Customer Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Customer Agreement.
9.4 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 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.6 No party shall make, or permit any person to make, any public announcement concerning this Customer Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9.7 The above provisions of this clause 9 shall survive termination of this Customer Agreement, however arising.
10.1 The Customer shall defend, indemnify and hold harmless D-Risk against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Software, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) D-Risk provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
10.2 D-Risk shall defend the Customer, its officers, directors and employees against any claim that the Services or Software infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) D-Risk is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to D-Risk in the defence and settlement of such claim, at D-Risk’s expense; and
(c) D-Risk is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, D-Risk may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Customer Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall D-Risk, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) the Customer’s use of the Services or Software in a manner contrary to the instructions given to the Customer by D-Risk; or
(b) the Customer’s use of the Services or Software after notice of the alleged or actual infringement from the D-Risk or any appropriate authority.
10.5 The foregoing and clause 13.3(b) state the Customer’s sole and exclusive rights and remedies, and D-Risk’s (including D-Risk’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of liability
11.1 Except as expressly and specifically provided in this Customer Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Software by the Customer, and for conclusions drawn from such use;
(b) D-Risk does not provide any warranty or assurance of compliance with any Relevant Scheme as a result of the use of the Software by the Customer;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Customer Agreement; and
(d) the Services and the Software are provided to the Customer on an “as is” basis.
11.2 Nothing in this Customer Agreement excludes the liability of D-Risk:
(a) for death or personal injury caused by D-Risk’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
(a) D-Risk shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Customer Agreement; and
(b) D-Risk’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Customer Agreement shall be limited to the total Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.
12. Term and termination
12.1 This Customer Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date shall be automatically renewed for successive periods of one month (each a Renewal Period), unless:
(a) either party gives the other party not less than 30 days’ notice of termination, in writing, in which case this Customer Agreement shall terminate at the end of the current Minimum Term or Renewal Period which is in force at the end of the 30 day notice period; or
(b) otherwise terminated in accordance with the provisions of this Customer Agreement;
and the Minimum Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, D-Risk may terminate this Customer Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this Customer Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the Customer commits a material breach of any other term of this Customer Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
(c) the Customer 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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(d) the Customer 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 the Customer with one or more other companies or the solvent reconstruction of the Customer;
(e) 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 the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;
(g) the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(i) a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to clause 14.2(i) (inclusive);
(k) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(l) there is a change of control of the Customer.
12.3 On termination of this Customer Agreement for any reason:
(a) all licences granted under this Customer Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Software;
(b) D-Risk may destroy or otherwise dispose of any of the Customer Data in its possession, unless D-Risk receives, no later than ten days before the effective date of the termination of this Customer Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. D-Risk shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by D-Risk in returning or disposing of Customer Data; and
(c) 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 Customer Agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. Force majeure
D-Risk shall have no liability to the Customer under this Customer Agreement if it is prevented from or delayed in performing its obligations under this Customer Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of D-Risk or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in these terms and conditions and the Contact Details, the provisions in the Contract Details shall prevail.
No variation of this Customer Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Customer Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.1 If any provision or part-provision of this Customer Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Customer Agreement.
17.2 If any provision or part-provision of this Customer Agreement is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. Entire agreement
18.1 This Customer Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into this Customer Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Customer Agreement.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Customer Agreement.
18.4 Nothing in this clause shall limit or exclude any liability for fraud.
19.1 The Customer shall not, without the prior written consent of D-Risk, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Customer Agreement.
19.2 D-Risk may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Customer Agreement.
20. Third party rights
This Customer Agreement does not confer any rights on any person or party (other than the parties to this Customer Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice required to be given under this Customer Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Customer Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in this Customer Agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
22. Governing law
This Customer Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Customer Agreement or its subject matter or formation (including non-contractual disputes or claims).