Terms and Conditions

Version 10.5
Bantham Software as a ServiceMaster Terms and Conditions

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation our Bantham platform and services. You will be asked to agree to these terms and conditions before becoming a customer.

You should print a copy of these terms and conditions for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our website in future.

These terms and conditions are available in the English language only.

If you have any questions or complaints about our services, please contact us by writing to Customer Services,  Bantham Technologies, Michelin House, 81 Fulham Road, London, SW3 6RD or by email to info@banthamtechnologies.com.

1. Definitions and interpretation

1.1 In the Agreement:

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, and any amendments to the Agreement from time to time;

“Application” means the software application(s) supplied by the Provider to the Customer for the purpose of enabling the Customer to access and use the Platform;

“Authorised Users” those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Platform;

“Business Day” means any week day, other than a bank or public holiday in England; “Business Hours” means between 09:00 and 17:00 UK time on a Business Day;

“CRN” means a change request notice issued in accordance with Clause 11, which may be in the form specified in Schedule 4;

“CRN Consideration Period” means the period of ten (10) Business Days following the receipt of a CRN sent by the other party;

“Change” means any change to the terms of the Agreement;

“Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement (as set out in Schedule 2);

“Confidential Information” means the Customer Confidential Information and the Provider Confidential Information;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer” means the customer specified in the Statement of Services;

“Customer Confidential Information” means

(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;

(b) the terms and conditions of the Agreement;

(c) the Customer Materials;

(d) other confidential information;

but excludes any Customer Templates created by the Customer through use of the Platform

“Customer Indemnity Event” has the meaning given to it in Clause 13.1;

“Customer Materials” means all works and materials uploaded to, stored on, processed using or transmitted via the Platform or Application by or on behalf of the Customer or by any person or application or automated system using the Customer’s account, but excluding Customer Templates;

“Customer Representatives” means the person or persons identified as such in the Statement of Services and who is authorised by the Customer to access the Services as an administrator and to request additional User Subscriptions under the Agreement;

“Customer Templates” means form templates and/or form designs created through the use of the Platform by or on behalf of the Customer but excluding any Customer logos or trademarks;

“Customisations” means customisations to the Platform that the Provider and Customer agree the Provider will produce on behalf of the Customer;

“Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, suppliers or sub-contractors; or

(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in the Statement of Services;

“Documentation” means the documentation produced by the Provider and made available to the Customer specifying how the Platform and Application should be used;

“Effective Date” means the date that the Agreement comes into force as specified in Clause 2;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Hardware” means any hardware provided directly or indirectly under this Agreement, including but not limited to digital pens, tablets and handsets;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;

“Minimum Term” means the period specified as such in the Statement of Services;

“Permitted Purpose” means the capture, processing, review and onward transmission of data;

“Personal Data” has the meaning given to it in the Data Protection Act 1998 (DPA) and/or General Data Protection Regulation (GDPR);

“Platform” means the software platform known as Bantham that is operated by the Provider, and that will be made available to the Customer as a service under the Agreement;

“Provider” means Bantham Technologies, a company incorporated in England and Wales (registration number 06481806), having its registered office address at The Station House, Station Road, St Ives PE27 5BH;

“Provider Confidential Information” means:

(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Customer that is marked as “confidential”, described as “confidential” or should have been understood by the Customer at the time of disclosure to be confidential;

(b) the terms and conditions of the Agreement; and

(c) other confidential information;

“Provider Indemnity Event” has the meaning given to it in Clause 13.3;

“Provider Representatives” means the person or persons identified as such in the Statement of Services;

“Representatives” means the Customer Representatives and the Provider Representatives; “Schedule” means a schedule attached to the Agreement;
“Services” means all the products and services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;

“Statement of Services” means the sales proposal made available by the Provider to the Customer during the order process or the Purchase Order supplied to the Provider by the Customer, that specifies the identity of the Customer, the scope of the Services to be Provided and other matters relating to the Agreement;

“Support Services” means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 1;

“Term” means the term of the Agreement;

“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform; and

“User Subscriptions” the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Platform in accordance with the Agreement.

1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of the Agreement.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

2. Agreement and Term

2.1 The advertising of the Platform and the Services on the Provider’s website and/or the provision of a Statement of Services by the Provider to the Customer constitutes an “invitation to treat”; and the Customer’s order for the Platform and the Services constitutes a contractual offer. No contract will come into force between the Provider and the Customer unless and until the Provider accepts the Customer’s order in accordance with the procedure detailed in this Clause 2.

2.2 The Customer accepts that the Services to be provided under this Agreement are as specified in the Statement of Services. Any additional work required which is not specified in the Statement of Services will be treated as a Change.

2.3 The Customer agrees that the provisions of the Ecommerce Regulations 9(1)(a), 9(1)(c) and 11(1)(b) will not apply to this Agreement. The Agreement will come into force once the Provider has set up the Customer’s account on the Platform in accordance with Clause 3.

3. The Platform

3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform and providing to the Customer login details for that account as soon as practicable.

3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via the Application and/or via any compatible standard web browser in accordance with the Documentation during the Term.

3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

(a) the maximum number of Authorised Users that the Customer authorises to access and use the Platform shall not exceed the number of User Subscriptions it has purchased from time to time, providing that the Customer may add or remove Authorised Users in accordance with the procedure set out in the Documentation;

(b) the Platform may only be used by the employees, agents and sub-contractors of the Customer and:

(i) where the Customer is a company, the Customer’s officers;

(ii) where the Customer is a partnership, the Customer’s partners; and

(iii) where the Customer is a limited liability partnership, the Customer’s members;

(c) the Customer must comply at all times with the terms of the acceptable use policy set out in Schedule 3, and must ensure that all Authorised Users agree to and comply with the terms of that acceptable use policy;

(d) where digital pens are being used with the Platform, the Customer must comply at all times to the MyScript End User Agreement and NeoLAB provisions available from the Provider on request.

(e) all data uploaded to OR sent from the Platform by the Customer shall be stored for a period of 7 days after which it will be irretrievably deleted unless otherwise requested in writing by the Customer and agreed by the Provider.

3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;

(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; and

(c) the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation.

3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.

3.6 All Intellectual Property Rights in the Platform including that created as a result of the Customer’s use of the platform, shall, as between the parties, be the exclusive property of the Provider.

3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer’s account.

3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

3.9 The Customer must not use the Platform:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. The Application and the Hardware

4.1 The Provider will make available for download by the Customer a copy or copies of the Application.

4.2 The use of the Application shall be subject to the following licensing terms:

(a) the Customer may only use the Application for the Customer’s internal business purposes;

(b) the Customer may download, install and use the Application on any computer owned and operated by the Customer anywhere in the world strictly in accordance with the Documentation;

(c) the Customer must not:

(i) copy or reproduce the Application or any part of the Application other than in accordance with the licence granted in this Clause 5;

(ii) sell, resell, rent, lease, loan, supply, distribute, redistribute, publish or re- publish the Application or any part of the Application or Hardware;

(iii) modify, alter, adapt, translate or edit, or create derivative works of, the Application or any part of the Application;

(iv) reverse engineer, decompile, disassemble the Application or any part of the Application or Hardware (except as mandated by applicable law);

(v) use the Application or the Hardware other than in accordance with the Documentation; or

(vi) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Application for the purposes of preventing unauthorised use.

4.3 All Intellectual Property Rights in the Application shall, as between the parties, be the exclusive property of the Provider.

4.4 The Customer shall be responsible for the security of the Customer’s copies of the Application and will use all reasonable endeavours to ensure that access to the Application is restricted to persons authorised to use it.

5. Support Services and Upgrades

5.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 1.

5.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customers

6. Customisations

6.1 From time to time the Provider and the Customer may agree that the Provider will customise the Platform and/or the Application using the Change control procedure set out in Clause 11.

6.2 From the date when a Customisation is first made available to the Customer, the Customisation shall form part of the Platform (or Application where appropriate) under the Agreement, and accordingly from that date the Customer’s rights to use the Customisation shall be governed by Clause 3 (or Clause 5).

6.3 The Customer acknowledges that the Provider may make any Customisation available to its other customers following the making available of that Customisation to the Customer.

6.4 All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider.

6.5 The Customer will provide the Provider with:

(a) such access to the Customer’s computer systems and such other co-operation as is required by the Provider (acting reasonably) to enable the performance by the Provider of its obligations under this Clause 7;

(b) all information and documents required by the Provider (acting reasonably) in connection with the performance by the Provider of its obligations under this Clause 7; and

(c) any legal, accountancy or taxation advice reasonably required to ensure the compliance of the Customisations with applicable laws, regulations and standards.

6.6 The Customer will be responsible for procuring any third-party co-operation reasonably required by the Provider to enable the Provider to fulfil its obligations under this Clause 7.

7. Management

7.1 The Customer will ensure that all instructions in relation to the Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:

(a) may treat all such instructions as the fully authorised instructions of the Customer; and

(b) will not comply with any other instructions in relation to the Agreement without first obtaining the consent of a Customer Representative.

7.2 The parties will hold contract management meetings by telephone and via the internet at the reasonable request of either party.

7.3 A party requesting a contract management meeting to be held will give to the other party at least 15 Business Days’ notice of the meeting.

7.4 Wherever necessary to enable the efficient conduct of business, the Customer will be represented at a contract management meeting by at least one Customer Representative and the Provider will be represented at a contract management meeting by at least one Provider Representative.

8. Customer Materials

8.1 The Customer grants to the Provider during the Term a non-exclusive, royalty free license to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.

8.2 The Customer grants to the Provider a perpetual, non-exclusive, royalty free licence to store, copy and otherwise use, for the purposes of marketing the Platform, any Customer Templates.

8.3 Subject to Clauses 9.1 and 9.2, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.

8.4 The Customer warrants and represents to the Provider that the Customer Materials and Customer Templates, and their use by the Provider in accordance with the terms of the Agreement, will not:

(a) breach any laws, statutes, regulations or legally-binding codes;

(b) infringe any person’s Intellectual Property Rights or other legal rights; or

(c) give rise to any cause of action against the Provider or the Customer or any third party,

in each case in any jurisdiction and under any applicable law in England and Wales and under English law.

8.5 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 9, the Provider may:

(a) delete or amend the relevant Customer Materials or Customer Templates; and/or

(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.

8.6 Any breach by the Customer of this Clause 9 will be deemed to be a material breach of the Agreement for the purposes of Clause 17.

8.7 The Provider shall ensure that the Customer Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.

9. Charges

9.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of this clause and Schedule 2.

9.2 The Customer will pay the Charges to the Provider within 30 days of the date of issue of an invoice issued in accordance with Clause 10.1.

9.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.

9.4 If the Customer does not pay any amount properly due to the Provider under or in connection with the Agreement, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 3% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

9.5 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 5 days.

10. Change control

10.1 The provisions of this Clause 11 apply to all Changes requested by a party.

10.2 Either party may request a Change at any time.

10.3 When requesting a Change, the requesting party will notify the other party and provide a CRN (which may be in the form specified in Schedule 4). The CRN will set out (as a minimum):

(a) details of the impact on the Services;

(b) details of any additional resources expected to be required as a result of the Change; and

(c) details of any variation to the Charges consequent upon the Change.

10.4 The other party will consider any proposed Change within the CRN Consideration Period.

10.5 Either party may:

(a) accept or reject a CRN issued by the other party;

(b) request further information concerning any aspect of a CRN issued by the other party; and/or

(c) request amendments to a CRN issued by the other party.

10.6 Following agreement of a CRN, each party will confirm its agreement to the CRN by:

(a) signing a copy of the CRN and sending the signed CRN to the other party; or

(b) otherwise sending its written acceptance of the CRN to the other party.

10.7 Until a CRN recording a proposed Change has been signed or agreed in writing by each party, the proposed Change will not take effect.

11. Warranties

11.1 Where the Provider is not the manufacturer of Hardware, the Provider shall endeavour to transfer to the Customer the benefit of any warranty or guarantee provided by the manufacturer in relation to such Hardware. The Customer shall be responsible for contacting the manufacturer in relation to any such warranty claim. The Provider will have no obligation to assist the Customer in relation to warranty claims on Hardware where it is not the manufacturer.

11.2 The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.

11.3 The Provider warrants to the Customer:

(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;

(b) that it will perform its obligations under the Agreement with reasonable care and skill;

(c) that the Platform will perform substantially in accordance with the Documentation (subject to any Upgrades and Customisations;

(d) that the Platform will be hosted in accordance with the requirements set out in the Statement of Services, and will be available to the Customer in accordance with the uptime commitments given in Schedule 1;

(e) the Platform (excluding for the avoidance of doubt the Customer Materials) will not:

(i) breach any laws, statutes, regulations or legally-binding codes;

(ii) infringe any person’s Intellectual Property Rights or other legal rights; or

(iii) give rise to any cause of action against the Provider or the Customer or any third party,

in each case in any jurisdiction and under any applicable law / in England and Wales and under English law; and

(f) the Platform is and will remain free from viruses and other malicious software programs.

11.4 The Customer acknowledges that:

(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;

(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program, hardware device or software (other than the Application) not specifically identified as compatible in the Statement of Services;

(c) the Services may require the Customer to use certain compatible hardware for its operation; the provider publishes lists of compatible Hardware, but it is the responsibility of the Customer to ensure that compatible Hardware is used with the Services;

(d) hardware providers may update the software which operates on their devices from time to time and, although unlikely, such updates may result in a formally compatible device becoming incompatible and Provider is not responsible for any resulting problems or other damage;

(e) the Services may be affected by other software application loaded onto hardware, low memory and viruses and Provider is not responsible for any resulting problems or other damage;

(f) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person;

(g) the Statement of Services accurately details the scope of the Services to be provided under this Agreement; and

(h) the Services may be subject to limitations or issues inherent in the use of the Customer’s network, hardware, the internet, Global Positioning Systems and Global System for Mobile Communications and Provider is not responsible for any deterioration in Services or other damage resulting from such limitations or issues. Where handwriting recognition software is used in the Services, the recognition rate is affected by the quality of the input by the customer. Recognition rates for unstructured cursive handwriting will tend to be less accurate than for structured data input. Provider has extensive experience of optimising handwriting recognition and will exert reasonable efforts to establish the best possible recognition for the Customer’s Templates. However, the Customer accepts that the Provider shall have no liability for the quality of the handwriting recognition.

11.5 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.

12. Indemnities

12.1 Subject to the Provider’s compliance with Clause 13.2, the Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause 9.4 (a “Customer Indemnity Event”).

12.2 The Provider will:

(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b) provide to the Customer reasonable assistance in relation to the Customer Indemnity Event;

(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements relating to the Customer Indemnity Event; and

(d) not admit liability in connection with the Customer Indemnity Event or settle the Customer Indemnity Event without the prior written consent of the Customer.

12.3 Subject to the Customer’s compliance with Clause 13.4, the Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 12.3(e) (a “Provider Indemnity Event”).

12.4 The Customer will:

(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;

(b) provide to the Provider reasonable assistance in relation to the Provider Indemnity Event;

(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements relating to the Provider Indemnity Event; and

(d) not admit liability in connection with the Provider Indemnity Event or settle the Provider Indemnity Event without the prior written consent of the Provider.

13. Limitations and exclusions of liability

13.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c) limit any liability of a party in any way that is not permitted under applicable law; or

(d) exclude any liability of a party that may not be excluded under applicable law.

13.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in the Agreement:

(a) are subject to Clause 14.1;

(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and

(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.

13.3 Neither Party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

13.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.

13.5 Neither party will be liable for any loss of or damage to goodwill or reputation.

13.6 Neither party will be liable in respect of any loss or corruption of any data, database or software.

13.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.

13.8 Neither party will be liable for any losses arising out of a Force Majeure Event.

13.9 Provider’s liability in relation to any event or series of related events will exceed the total amount paid and payable by the Customer to the Provider under the Agreement during the 12-month period immediately preceding the event or events giving rise to the claim.

13.10 Provider’s aggregate liability under the Agreement will exceed the total amount paid and payable by the Customer to the Provider under the Agreement.

14. Data protection

14.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

14.2 The Provider warrants that:

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and

(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.

15. Confidentiality and publicity

15.1 The Provider will:

(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause 16; and

(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

15.2 The Customer will:

(a) keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this Clause 16;

(b) protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

15.3 Confidential Information of a party may be disclosed by the other party to that other party’s officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.

15.4 The obligations set out in this Clause 16 shall not apply to:

(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer, and Provider Confidential Information that is in possession of the Customer prior to disclosure by the Provider;

(c) Customer Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information; or

(d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirement must, where permitted by law, give to the other party prompt written notice of the disclosure requirement.

15.5 Neither party will make any public disclosure relating to the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party.

16. Termination

16.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:

(a) commits any material breach of any term of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

(b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).

16.2 Either party may terminate the Agreement immediately by giving written notice to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due; or

(iv) is or becomes insolvent or is declared insolvent; or

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company re-organisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs or is the subject of a bankruptcy petition or order.

16.3 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate the Agreement by giving at least 90 days’ written notice of termination to the Customer.

16.4 The Provider may terminate the Agreement by giving written notice of termination to the Customer in the event that the parties cannot reasonably agree on any Change request made in accordance with Clause 11.

16.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.

17. Effects of termination

17.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 5.4, 10, 13, 14, 16, 18 and 21.

17.2 Termination of the Agreement will not affect either party’s accrued liabilities or rights as at the date of termination.

17.3 Save as expressly provided in this Agreement, if this Agreement is terminated by the Customer for a breach by the Provider, the Customer will be liable for all Charges under this Agreement up to the date of termination.

17.4 Subject to Clause 18.7, within 30 days following the termination of the Agreement, the Provider will irrevocably delete from the Platform all Customer Confidential Information.

17.5 Subject to Clause 18.7, within 30 days following the termination of the Agreement, the Customer will:

(a) return to the Provider or dispose of as the Provider may instruct all documents and materials containing Provider Confidential Information; and

(b) irrevocably delete from its computer systems all Provider Confidential Information.

17.6 A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination of the Agreement if:

(a) that party is obliged to retain such document by any law or regulation or other rule enforceable against that party; or

(b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the party retaining the document.

18. Notices

18.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by fax or email, for the attention of the relevant person, and to the relevant address or fax number or email address given below (or as notified by one party to the other in accordance with this Clause).

The Provider:
Bantham Technologies The Station House, Station Road, St Ives PE27 5BH

The Customer:
The addressee, address, email and fax set out in the Statement of Services.

18.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a) where the notice is delivered personally, at the time of delivery;

(b) where the notice is sent by recorded signed-for post, 48 hours after posting; and

(c) where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

19. Force Majeure Event

19.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

19.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:

(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

19.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

20. General

20.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

20.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

20.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

20.4 The Agreement may not be varied except in accordance with Clause 11 or by a written document signed by or on behalf of each of the parties.

20.5 The Customer hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.

20.6 Neither party will, without the other party’s prior written consent, either during the term of the Agreement or within 3 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party who has been involved in the performance of the Agreement.

20.7 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.

20.8 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

20.9 Subject to Clause 14.1:

(a) the Agreement and the acceptable use policy and end user license agreements referred to in herein constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and

(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

20.10 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

Service Level Agreement

By signing this Agreement, the Customer accepts the SLA.
Changes to the SLA may be required from time to time and updated documents will be sent to the customer.

The Provider will give the Customer 30-days, notice of all and any changes made to the SLA, which must be agreed by the Customer.

Charges

1. Introduction

1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

1.2 The Charges under the Agreement will consist of the following elements:

(a) product charges, in respect of products supplied as detailed in the Statement of Services;

(b) set-up charges in respect of the initial configuration of Authorised Users and licensing of the Application(s);

(c) access charges, in respect of access to and use of the Platform and Support Services;

(d) professional service charges, in respect of the training and consultancy;

(e) other charges.

2. Product Charges

The product charges in respect of Hardware and accessories supplied under the Agreement shall be made up of a fixed charge as detailed in the Statement of Services which shall be invoiced by the Provider on or after the Effective Date.

3. Set-up Charges

The set-up charges in respect of set-up of Authorised Users and licensing of the Application(s) shall be made up of a fixed charge as detailed in the Statement of Services which shall be invoiced by the Provider at any time following the commencement of the calendar month in respect of which the set-up charges are incurred as a result of an Authorised User being added or deleted during a calendar month.

4. Access Charges

4.1 The access charges in respect of access to and use of the Platform shall be made up of a Charge as detailed in the Statement of Services.

Access Charges relating to Authorised Users shall be invoiced by the Provider monthly in advance of the calendar month in respect of which the access charges are incurred (such amount to be pro-rated by the Provider in the event that the Agreement came into force or was terminated during a calendar month, or in the event that an Authorised User was added or deleted during a calendar month).

4.2 Additional User Subscriptions

Additional User Subscriptions may be purchased by the Customer in accordance with Clause 4. The Charges for Additional User Subscription will commence on the date of approval by the Customer of the request for an Additional User and will run for a minimum period ending on the expiry of the Minimum Period. After this minimum period the Additional User Subscriptions may be terminated in accordance with Clause 17 of the Agreement.

5. Professional Service Charges

On or after the Effective Date of the Agreement the Provider shall invoice the Customer for a fixed charge as detailed in the Statement of Services in respect of professional services.

6. Other Charges

6.1 In addition to the Charges detailed above, the Provider will invoice in respect of, and the Customer shall pay to the Provider, all other Charges that are agreed between the parties in writing from time to time.

Schedule 3 Acceptable Use Policy

1. This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of the Services and any content that you may submit to the Services (“Content”).

By using the Services, you agree to the rules set out in this Policy.

2. General restrictions

You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services, or any of the areas of, or Services on, the Services.

You must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3. Unlawful and illegal material

You must not use the Services to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its publication on the Services) must not:

(a) be libelous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;

(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime;

(g) be in contempt of any court, or in breach of any court order;

(h) be in breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) be in breach of official secrets legislation; or

(k) be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

4. Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Services without our express written consent.

5. Graphic material

Content must not depict violence in an explicit, graphic or gratuitous manner.

Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.

6. Harmful software

You must not use the Services to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.

You must not use the Services to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

7. Banned users

Where we suspend or prohibit your access to the Services or a part of the Services, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).

8. Monitoring

Notwithstanding the provisions of this Policy, we do not actively monitor Content.

9. Report abuse

If you become aware of any material on the Services that contravenes this Policy, you must notify us by email.

Contact Us

If you have any questions or concerns regarding these Terms and Conditions or about our use of your information then please contact us by email, phone or post.

Tel: +44 (0)20 7698 4447
Email: info@banthamtechnologies.com

Bantham Technologies
Michelin House
81 Fulham Road
London
SW3 6RD