Portal Terms of Service

Optiseller terms and conditions

1. Application of conditions

• 1.1 These Terms and Conditions ("Conditions") apply to the agreement between the Customer and the Supplier for the Services ("Agreement"). The Agreement is comprised of these Conditions along with the Order (as defined below).

2. Interpretation

• 2.1 The following definitions apply in these Conditions.
  API: means the Company's application programming interface which may be made available to the Customer in relation the delivery of the Services Data.
  Authorised Users: employees, agents or independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation under the Agreement.
  Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Scotland are open for business.
  Confidential Information: information that is proprietary or confidential, or is either clearly labelled as such or identified as Confidential Information.
  Customer: means the person or organisation who purchases Services from the Supplier as set out in the Order.
  Customer Data: the data inputted by the Customer, Authorised Users, End Users or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s or End Users’ use of the Services, together with Services Data.
  Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 and regulations made under it.
  Documentation: the document made available to the Customer by the Supplier online via www.optiseller.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
  Effective Date: the date when the Supplier confirms acceptance of the Order.
  End User: a company or other legal entity which is a client of the Customer who the Customer provides the Services and Documentation under this Agreement.
  Fees: the fees payable by the Customer to the Supplier as set out in the Order.
  Initial Term: the initial term of the Agreement as set out in the Order.
  Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  Normal Business Hours: 9.00am to 5.00pm GMT, each Business Day.
  Order: means the order page to which these terms and conditions are attached or the online order page(s) setting out the details of the Customer and of Services chosen by the Customer and any additional conditions which apply to those Services.
  Platform: means the Supplier’s infrastructure and cloud computing platform which is used to provide the Services via www.optiseller.com or such other website notified by the Supplier from time to time.
  Services: the product listing optimisation services provided by the Supplier to the Customer under the Agreement via the Platform as more particularly described in the Documentation and the Order, and where applicable by use of the API.
  Services Data: means the analytical and product optimisation information which is generated by use of the Services.
  Software: the online software applications provided by the Supplier as part of the Services.
  Supplier: Developing IT Limited, a company registered in Scotland with company number SC277442 whose registered office is at Office 11, STEP, Stirling FK7 7RP.
  Trial Period: the trial period, if any, as specified in the Order.
  UK GDPR: has the meaning given to it in the Data Protection Act 2018.
  Users: both Authorised Users and End Users.
  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.

3. Authorised Users

• 3.1 Subject to these Conditions, the Supplier now grants to the Customer a non-exclusive right to (i) permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer’s internal business operations (including the analysis of the Customer’s product listings and its online sales) and (ii) enable End Users to access and use the Services and Documentation via a password protected part of the Platform during the Term solely for its internal business operations including the analysis of its product listings and its online sales.
• 3.2 In relation to the Users, the Customer undertakes that each User shall keep a secure password for his/her use of the Services.
• 3.3 The Customer shall not, and shall ensure that End Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
• 3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
• 3.3.2 facilitates illegal activity;
• 3.3.3 depicts sexually explicit images;
• 3.3.4 promotes unlawful violence;
• 3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
• 3.3.6 is otherwise illegal or causes damage or injury to any person or property.
• 3.4 The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s or an End User’s access to any material that breaches the provisions of this Condition.
• 3.5 The Customer shall not, and shall ensure that Users shall not:
  • 3.5.1.1 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 the Agreement:
  • 3.5.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Documentation (as applicable) in any form or media or by any means; or
  • 3.5.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
• 3.5.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services or the Documentation;
• 3.5.3 use the Services or Documentation to provide services to third parties;
• 3.5.4 subject to Condition 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
• 3.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Condition
• 3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
• 3.7 The rights provided under this Condition 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

4. Services

• 4.1 The Supplier shall provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement until termination of this Agreement in accordance with Condition 14.
• 4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven (7) days a week, except for:
• 4.2.1 planned maintenance; and
• 4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at reasonable notice in advance.
• 4.3 The Supplier will, as part of the Services and at no additional cost to the Company, provide the Company with the Supplier’s standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at the Supplier’s then current rates or as set out in the Order.
• 4.4 The Customer acknowledges that the Services are scaleable up to a limit of 150,000 Customer marketplace listings. If use of the Services goes beyond such limit, the Supplier shall be entitled at its discretion to close the applicable account or increase the Fees to cover the excess use of the Services.
• 4.5 Where the API is made available as part of the Services the following conditions shall apply;
• 4.5.1 the API is made available on a non-exclusive basis to enable delivery of Services Data and for no other purpose;
• 4.5.2 use of the API will be within any limits on API calls set by the Supplier;
• 4.5.3 the Customer may not remove any proprietary notices from the API; and;
• 4.5.4 the restrictions on the use of the Software set out in these terms shall apply to the use of the API.
• 4.6 The Customer shall ensure that End Users are required to accept terms and conditions for use of the Services which are at least as protective of the Supplier’s rights as the terms of this Agreement.

5. Customer Data

• 5.1 The Customer and End Users as applicable shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data which it provides. The Supplier shall not be entitled to use any Customer Data for its own purposes other than the Services Data which the Supplier is entitled to use to create its own analytical data sets.
• 5.2 The Customer shall be entitled to sell and /or disclose to an End User the Services Data which has been obtained via the API relating to that End User’s products and online sales.
• 5.3 In the event of any loss or damage to Customer Data, the Customer’s and End User’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the Supplier’s archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
• 5.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor (where “Controller”, “Processor”, “Data Subject” and “Personal Data” have the meanings as defined in the Data Protection Legislation).
• 5.5 The scope, nature and purpose of processing by the Supplier is in relation to the provision of the Services. The type of Personal Data will be set out in the Customer Data and the categories of Data Subjects are any individuals that may be referred to within the Customer Data. The duration of the processing is that of the Supplier’s standard retention period as set out in the Supplier’s Privacy Policy as amended from time to time.
• 5.6 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Agreement.
• 5.7 The Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Agreement:
• 5.7.1 process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws applicable to the Supplier to process Personal Data (“Applicable Laws”);
• 5.7.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, 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);
• 5.7.3 ensure that all personnel who have access to or process Personal Data are obliged to keep the Personal Data confidential;
• 5.7.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
  • 5.7.4.1 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
  • 5.7.4.2 the Data Subject has enforceable rights and effective legal remedies;
  • 5.7.4.3 the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
  • 5.7.4.4 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
• 5.7.5 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;
• 5.7.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;
• 5.7.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the Personal Data;
• 5.7.8 maintain complete and accurate records and information to demonstrate its compliance with this Condition 5.6 and allow for audits by the Customer or the Customer's designated auditor.
• 5.8 The Customer consents to the Supplier appointing third-party processors of Personal Data under the Agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement compliant with Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Condition 5.

6. Third Party Providers

• 6.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7. Suppliers's Obligations

• 7.1 The Supplier undertakes that the Services will be performed with reasonable skill and care and substantially in accordance with the Documentation and the Order.
• 7.2 The undertaking at Condition 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Condition 7.1. Notwithstanding the foregoing, the Supplier:
• 7.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
• 7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
• 7.3 The Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
• 7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.

8. Customer's Obligations

• 8.1 The Customer shall provide:
• 8.1.1.1 all necessary co-operation in relation to the Agreement; and
• 8.1.1.2 all necessary access to such information as may be required by the Supplier, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
• 8.1.1 provide the Supplier with:
• 8.1.2 comply with all applicable laws and regulations with respect to its activities under the Agreement;
• 8.1.3 carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
• 8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;
• 8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
• 8.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
• 8.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
• 8.2 The Customer shall be responsible and liable for all acts and omissions of End Users as though such acts and omissions were those of the Customer.

9. Charges and Payment

• 9.1 The Customer shall pay the Fees in accordance with this Condition 9 and the Order.
• 9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
• 9.2.1 its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card at such intervals specified in the Order.
• 9.2.2 its approved purchase order information to the Supplier, the Supplier shall invoice the Customer at such intervals specified in the Order and the Customer shall pay each invoice within 30 days after the date of such invoice.
• 9.3 Where a Trial Period applies, no Fees shall be due during that period. If the Customer does not terminate this Agreement during the Trial Period, the Supplier shall bill the Customer in accordance with Condition 9.2.
• 9.4 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
• 9.4.1 the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
• 9.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
• 9.5 All amounts and fees stated or referred to in the Agreement:
  • 9.5.1 shall be payable in pounds sterling;
  • 9.5.2 subject to Condition 13.3.2, are non-cancellable and non-refundable; and
  • 9.5.3 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
• 9.6 The Supplier shall be entitled to increase the Fees at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Order shall be deemed to have been amended accordingly.

10. Proprietary Rights

• 10.1 The Customer acknowledges and agrees that the Supplier and its licensors own all Intellectual Property Rights in the Services and the Documentation (including where applicable, the API). Except as expressly stated herein, the Agreement does not grant the Customer any Intellectual Property Rights in respect of the Services or the Documentation.
• 10.2 The Supplier confirms that it has all the Intellectual Property Rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms and conditions of the Agreement.

11. Confidentiality

• 11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
• 11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
• 11.1.2 was in the other party’s lawful possession before the disclosure;
• 11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
• 11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
• 11.2 Subject to Condition 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
• 11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms and conditions of the Agreement.
• 11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. 
• 11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
• 11.6 No party shall make, or permit any person to make, any public announcement concerning the 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. However the Supplier shall be entitled to refer to use of the Services by the Customer for promotional purposes including use of the Customer’s trade marks in relation to such reference, subject to the approval of the Customer (which approval shall not be unreasonably withheld delayed or conditioned).
• 11.7 The above provisions of this Condition 11 shall survive termination of the Agreement.

12. Indemnity

• 12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
• 12.1.1 the Customer is given prompt notice of any such claim;
• 12.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
• 12.1.3 the Customer is given sole authority to defend or settle the claim.
• 12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any UK 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:
  • 12.2.1 the Supplier is given prompt notice of any such claim;
  • 12.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
  • 12.2.3 the Supplier is given sole authority to defend or settle the claim.
• 12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
• 12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  • 12.4.1 a modification of the Services or Documentation by anyone other than the Supplier;
  • 12.4.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
  • 12.4.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
• 12.5 This Condition 12 and Condition 3.2 states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. Limitation of Liability

• 13.1 Except as expressly and specifically provided in the Agreement:
• 13.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
• 13.1.2 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 the Agreement; and
• 13.1.3 the Services and the Documentation are provided to the Customer on an “as is” basis.
• 13.2 Nothing in the Agreement excludes the liability of the Supplier:
• 13.2.1 for death or personal injury caused by the Supplier’s negligence; or
• 13.2.2 for fraud or fraudulent misrepresentation.
• 13.3 Subject to Condition 13.1 and Condition 13.2:
• 13.3.1 the Supplier shall not be liable whether in delict (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 the Agreement; and
• 13.3.2 the Supplier’s total aggregate liability in contract (including in respect of the indemnity at Condition 13.2), delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim arose.

14. Term and Termination

• 14.1 The Agreement shall, unless otherwise terminated as provided in this Condition 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, until either party provides 30 days written notice to the other, such notice not to be effective before the expiry of the Initial Term.
• 14.2 The Customer shall be entitled to terminate the Agreement without incurring any liability for Fees by giving notice during the Trial Period, if applicable. Termination shall be effective immediately on receipt of such notice.
• 14.3 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
• 14.3.1 the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment;
• 14.3.2 the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified in writing to do so; or
• 14.3.3 the other is insolvent.
• 14.4 On termination of the Agreement for any reason:
• 14.4.1 all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services or the Documentation;
• 14.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
• 14.4.3 subject to Condition 5 and the Data Protection Legislation, the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination of the Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
• 14.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

15. Force Majeure

• 15.1 The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16. Variation

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

17. Waiver

• 17.1 No failure or delay by a party to exercise any right or remedy provided under the 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.

18. Rights and Remedies

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

19. Severance

• 19.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
• 19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20. Entire Agreement

• 20.1 The 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.
• 20.2 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
• 20.3 Nothing in this Condition shall limit or exclude any liability for fraud.

21. Assignment

• 21.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
• 21.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

22. No Partnership or Agency

• 22.1 Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23. Third-Party Rights

• 23.1 No Condition under the Agreement shall be enforceable by a third party (being any person other than the parties, their permitted successors and assignees) under the Contract (Third Party Rights) (Scotland) Act 2017 or any other law.

24. Notices

• 24.1 Any notice required to be given under the 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 the 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 the Order.
• 24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am 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.

25. Dispute Resolution

• 25.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it, then it shall be referred in the first instance to the contract managers (or equivalent) of either party, who shall attempt to settle the dispute between themselves (acting in good faith) within one calendar month.
• 25.2 If the contract managers fail to resolve the dispute, it shall be referred to the chief executive officer (or equivalent) of either party, who shall attempt to settle the dispute between themselves (acting in good faith) within one calendar month.
• 25.3 If the chief executive officers (or equivalent) fail to resolve the dispute, the parties will attempt to settle it by mediation in good faith in accordance with the CEDR Model Mediation Procedure and the mediation will start, unless otherwise agreed between the parties, within seven (7) days of one party issuing a request to mediate to the other. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The mediation will take place in Edinburgh and the language of the mediation will be English. Any Mediation Agreement (referred to in the Model Procedure) shall be governed by, and construed and take effect in accordance with, the substantive laws of Scotland.
• 25.4 If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, or if either party fails to participate or ceases to participate in the mediation before the expiry of that period, the dispute shall be referred to arbitration. CEDR shall be the appointing body and administer the arbitration. CEDR shall apply the UNCITRAL rules in force at the time arbitration is initiated. In any arbitration commenced pursuant to this Condition, the number of arbitrators shall be one (1) and the seat or legal place of arbitration shall be Edinburgh, Scotland.
• 25.5 Parties shall be entitled to challenge the decision of the arbitrator, but only on the grounds of manifest error, serious procedural irregularity or point of law; otherwise the decision of the arbitrator shall be final and binding.

26. Governing Law

• 26.1 The 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 laws of Scotland.

27. Jurisdiction

• 27.1 Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).