1) Payapps.com (UK) Limited (09927146) with its registered office situated at Studio 012 Hoults Yard Walker Road Newcastle Upon Tyne NE6 2HL(hereinafter “Payapps.com”) and
(2) The legal person whose full legal name and physical address which is specifically identified in the registration for User Codes on the Web Site (hereinafter “the User Organisation”)
(A) Payapps.com (or its licensors) owns the Web Site and is the provider of the Services.
(B) The User Organisation has requested to use the Web Site and the Services.
(C) The Parties have agreed for Payapps.com to:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following definitions shall apply, except where the context indicates to the contrary:
“Agreement” means this agreement including the Schedules;
“Authorised User” means any individual who has been authorised by the User Organisation to access and use the Web Site and Services on behalf of the User Organisation and is granted such access by Payapps.com;
“Confidential Information” of a Party means all personal, organisational, technical, business and financial information, know-how, trade secret(s) and all other commercially valuable information of that Party, in whatever form and of whatever description, which that Party claims isconfidential to itself and over which it has full control and includes allother such information that may be in the possession of that Party, but doesnot include information which:
(i) is already in the public domain; or
(ii) hereafter becomes part of the public domain, through no fault of the receiving Party; or
(iii) is received by the receiving Party on a non-confidential basis from a third party lawfully entitled to disclose the same; or
(iv) is rightfully known by the receiving Party (as evidenced by its written record) prior to the date of firstdisclosure to it hereunder; or
(v) is independently developed by an officer or employee of the receiving Party who has no knowledge of such information;
“Commencement Date” means either:
(vi) the date upon which the User Organisation pays the Service Fee; or
(vii) the date upon which a User uses or clicks the “I ACCEPT” interactive function button, which is displayed on the Web Site; or
(viii) the date upon which a User first uses the Web Site for the Purpose: whichever is the first to occur;
“End Date” means either:(i) the date upon which the User Organisation ceases to pay the Service Fee; or(ii) the date upon which a User uses or clicks the “I TERMINATE” interactive function button and which is displayed on the Web Site: whichever is the first to occur;
“Force Majeure Circumstance” means in respect of a Party, any circumstance or event which, despite using all reasonable endeavours, the Partyis unable to control, including without limitation, any act of God, flood, fire, damage caused by lightening, storm or tempest, floods, industrial strikes or lock outs or other industrial disturbances, acts of war, civil disturbance or terrorism or any policy enactments of any government;
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up,goodwill and the right to sue for passing off or unfair competition, rights indesigns, rights in computer software, database rights, rights to use, andprotect the confidentiality of, confidential information (including know-howand trade secrets), and all other intellectual property rights, in each casewhether registered or unregistered and including all applications and rights toapply for and be granted, renewals or extensions of, and rights to claimpriority from, such rights and all similar or equivalent rights or forms ofprotection which subsist or will subsist now or in the future in any part ofthe world;
"Mandatory Policies" means Payapps.com mandatory policies set out in Schedule 3.
“Party” means either party to this Agreement and “Parties” shall mean both of them;
“Purpose” means the provision of the Services by Payapps.com to the User Organisation;
“Services” means the web-site contract payment management services to be provided by Payapps.com and which are described in more detail inSchedule 1;
“Service Fee” means service fee specified in the Subscription Plan;
“Subscription Plan” means the financial plan and time periodsof which the User Organisation has agreed to pay Payapps.com for the Services under this Agreement and which is separately displayed on the Web Site;
“Trade Mark” means a UK registered and/or unregistered trademark of the User Organisation;
“User Content” means all information (including without limitation, all numerical, literary and financial data and material), the UserCode and all literary works (including all written reports, texts and graphics)and all other subject matter which is uploaded by the User Organisation or any Authorised User onto the Web Site;
“User Code” means numerical and/or literary code and password issued to each Authorised User by Payapps.com for the purpose of that Authorised User accessing the Web Site under this Agreement and where thecontext requires, includes that Authorised User’s personal name, IP address,mobile telephone, land line telephone number, street address and e-mail address;
“Web Site” means the collection of web page(s) having as pecific hypertext transfer protocol (“HTTP”) address and accessible through the internet and which is situated at www.payapps.com, including without limitation: all “look and feel” and functionality (including all graphic user interfaces, tool bars and interactive click buttons); all software (including all object code, source code and meta-tags); all literary works (including financial forms, financial spread-sheets and tables, scripts, all numerical text, financial and businessdata, advertisements, including third party advertisements); all artistic works (including photographs and drawings), music works, sound recordings (includingaudio streaming), cinematographic films (including video and digital images);all registered andunregistered trade marks; this Agreement; the Subscription Plan; the PrivacyStatement; and the copyright notices; and any other legal notices; but in allcases excluding both the Web Site Content and the User Content;
“Web Site Content” means all information (including without limitation, all numerical, literary and financial data and material) and allliterary works (including all written reports, texts and graphics) and all other subject matter which is either:(
i) created and uploaded onto the Web Site by Payapps.com as a result of using the User Content for the Purpose; or
(ii) created and uploaded onto the Web Site by any third party users as a result of using the User Content for the Purpose;
“World” means all countries of the world.
1.1.1 In this Agreement, except wherethe context indicates to the contrary:
(a) words importing the singular shall include the plural (and vice versa); and
(b) words denoting a given gendershall include all other genders; and
(c) the word “person” includes a reference to anindividual, a body corporate, a joint venture, partnership, agency, trust or other body; and
(d) headings are for convenience only and shall not affect the interpretation of this Agreement; and
(e) all monetary amounts shall be deemed to be in British Pounds (GBP); and
(f) a reference to any statute and/or regulation or any provision of a statute and/or regulation, includes areference to that statute and/or regulation, as amended, re-enacted, modified, replaced or substituted from time to time; and
(g) a reference to a “day” in this Agreement is a reference to any calendar day and not necessarily a business day; and
(h) a reference to a “document” inthis Agreement, includes a reference to a document in hard copy, electronic or digital form.
1.2 Recitals and Schedule
1.2.1 The Schedule and the Recitals formpart of this Agreement.
2 Commencement and Term
2.1 This Agreement and the Services will both commence on the Commencement Date and will continue until the EndDate, subject to earlier termination under clause 20.
3 Web Site Services
3.1 Payapps.com hereby agrees to provide the User Organisation with the Services in accordance with the termsand conditions of this Agreement and the Subscription Plan.
3.2 In supplying the Services, Payapps.com shall:
3.2.1 perform the Services with reasonable care and skill;
3.2.2 use reasonable endeavours toensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
3.2.3 comply with:
(a) all applicable laws from timeto time in force; and
(b) the Mandatory Policies, provided that Payapps.com shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations underthe Contract.
3.3 Unless otherwise agreed in writing, this Agreement shall not prevent Payapps.com from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.
4 The User Organisation’s Role, Risks and Responsibilities
4.1 The User Organisation confirms and agrees that it has registered and each of its Authorised Users has received her or his User Code from Payapps.com using the Web Site.
4.2 The User Organisation agrees to cause its Authorised Users to upload the User Content to the Web Site to the maximum extent necessary in order for Payapps.com to properly provide the Services under theAgreement.
4.3 The User Organisation shall procure that each of its Authorised Users only upload User Content on the Web Site using the specific User Code allocated to that particular Authorised User.
4.4 The User Organisation agrees that:
4.4.1 the use of User Codes under this Agreement is entirely at the User Organisation’s risk; and
4.4.2 the User Organisation must immediately notify Payapps.com (whether by email or telephone) of any third party unauthorised use or access to a User Code.
4.5 Without limiting clause 4.4, the User Organisation shall be liable for all actions taken through the Web Site by any person using one or more components of a User Code. The User Organisation and each Authorised User shall be bound by this Agreement (as amended from timeto time) as specified on the Web Site at the time such actions are taken as if such provisions were set forth in this Agreement in full, which provisions are also incorporated into this Agreement by this reference.
4.6 The User Organisation shall:
4.6.1 provide Payapps.com with all necessary co-operation in relation to thisagreement; and all necessary access to such information as may be required by Payapps.com in order to render the Services, including but not limited to User Content, security access information and software interfaces to the User Organisation's other business applications, where required;
4.6.2 appoint the User Organisation's Representative who shall have the authority to contractually bind the User Organisation on all matters relating to this agreement. The User Organisation shall use reasonable endeavours to ensure continuity of the User Organisation's Representative;
4.6.3 comply with the Mandatory Policies;
4.6.4 without affecting its other obligations under this agreement, comply with all applicable laws andregulations with respect to its activities under this agreement; and
4.6.5 carry out all other User Organisation responsibilities set out in this agreement or in any of theSchedules in a timely and efficient manner. In the event of any delays in the UserOrganisation's provision of such assistance as agreed by the parties, Payapps.com may adjust any timetable or delivery Schedule set out in this agreement asreasonably necessary.
4.7 If Payapps.com's performance of its obligations under the Contract is prevented or delayed by any act or omission of the User Organisation, its agents, subcontractors, consultants or employees, including any Authorised User Payapps.com shall: 4.7.1 not be liable for any costs, charges or losses sustained or incurred by the User Organisation that arise directly or indirectly from such prevention or delay;
4.7.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.7.3 be entitled to recover any additional costs, charges or losses Payapps.com sustains or incurs that arise directly or indirectly from such prevention or delay.
5 Grant of Licence to Use the Web Site
5.1 Subject to the User Organisation complying with all of its obligations under this Agreement, including the payment of the Service Fee, Payapps.com hereby grants to the User Organisation and the User Organisation hereby accepts from Payapps.com, a royalty-free, non-exclusive, non-transferable and revocable licence throughoutthe World for the Purpose for the User Organisation’s Authorised Users to:
5.1.1 access and use the Web Site; and
5.1.2 upload the User Content onto the Web Site; and
5.1.3 access the Web Site Content.
5.2 The User Organisation agrees thatPayapps.com’s grant of licence to the User Organisation to the Web Site under clause 5.1 is subject to the following conditions:
5.2.1 that each Authorised User only uses his or her registered User Code to access the Web Site; and
5.2.2 that an Authorised User has no rights to use the Web Site for any other purpose other than for the Purpose.
5.3 The User Organisation has the right to grant sub-licences of its rights granted under clause
5.1 to any of its Authorised Users for the purpose of thisAgreement, provided that those Authorised Users agree to be personally bound by the User Organisation’s obligations under this Agreement.
5.4 The Parties further acknowledgeand agree that:
5.4.1 the User Organisation has no rights to grant any sub-licence to any third parties other than in accordance with clause 5.3; and
5.4.2 that any sub-licensee contemplated under clause 5.3, has no rights to grant any further sub-licences of its rights to any third partiesin any way whatsoever.
6 Ownership of the Web Site
6.1 The Parties confirm and agreethat ownership of all title, rights and interest in and to the Web Site(including all Intellectual Property Rights throughout the World subsistingtherein) shall remain vested solely in Payapps.com and its licensors.
7 Ownership of the Web Site Content
7.1 The Parties agree that ownership of all title, rights and interest in and to the Web Site Content (including all Intellectual Property Rights throughout the World subsisting therein) shall vest in Payapps.com on creation, and shall remain vested solely in Payapps.com (or its licensors).
7.2 The User Organisation agrees to execute any further documents (including executing, or procuring the execution of, any written assignments in favour of Payapps.com) and do all such further acts and things as may be necessary, to ensure the transfer of ownership to Payapps.com of all title, rights and interest in and to the Web Site Content (including all Intellectual Property Rights throughout the World subsisting therein), contemplated by clause 7.1, at the cost of Payapps.com.
8 Ownership and Grant of Licence to User Content
8.1 The Parties agree that ownership of all title, rights and interest in and to the User will remain vested solely in the User Organisation, at the time of creation.
8.2 The User Organisation herebygrants to Payapps.com and Payapps.com hereby accepts from the UserOrganisation, a royalty-free, non-exclusive, non-transferable, perpetual andirrevocable license throughout the World, to use, reproduce, adapt andcommunicate the User Content on the Web Site for the Purpose.
8.3 The User Organisation shall ownall rights, title and interest in and to all of the User Content that is notpersonal data and shall have sole responsibility for the legality, reliability,integrity, accuracy and quality of such User Content.
9 Data Protection
9.1 In this Clause: controller, processor, data subject, personal data, personal data breach, processing and appropriatetechnical and organisational measures: as defined in the Data Protection Legislation. Data Protection Legislation: means all applicable data protection and privacy legislation inforce from time to time in the UK including the UK General Data ProtectionRegulation 2020; the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) andthe Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) asamended.
9.2 Both parties will comply withall applicable requirements of the Data Protection Legislation. This clause 9. is in addition to, and does not relieve, remove or replace, a party's obligations orrights under the Data Protection Legislation.
9.3 The parties acknowledge thatfor the purposes of the Data Protection Legislation, the User Organisation is the controller and Payapps.com is the processor. Schedule 2 sets out the scope, nature and purpose of processing by Payapps.com, the duration of the processing and the types of personal data and categories of data subject and any specific instructions of the data controller.
9.4 Without prejudice to the generality of clause 9.2, the User Organisation will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Payapps.com for the duration and purposes of this agreement.
9.5 Without prejudice to the generality of clause 9.2, Payapps.com shall, in relation to any personal data processed in connection with the performance by Payapps.com of its obligations under this agreement:
9.5.1 process that personal data only on the documented written instructions of the User Organisation which are set out in Schedule 2 unless Payapps.com is required by law (Applicable Laws) to process personal data other than in accordance with the User Organisation's instructions. Where Payapps.com is relying on Applicable Laws as the basis for processing personal data, Payapps.com shall promptly notify the User Organisation of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Payapps.com from so notifying the User Organisation;
9.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the User Organisation, 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);
9.5.3 not transfer any personal data outside of the UK or the European Economic Area unless the prior written consent of the User Organisation has been obtained and the following conditions are fulfilled:
(a) the User Organisation or Payapps.com has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) Payapps.com complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) Payapps.com complies with reasonable instructions notified to it in advance by the User Organisation with respect to the processing of the personal data.
9.5.4 assist the User Organisation, at the User Organisation'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;
9.5.5 notify the User Organisation without undue delay on becoming aware of a personal data breach;
9.5.6 at the written direction of the User Organisation, delete or return personal data and copies thereof to the UserOrganisation on termination of the agreement unless required by Applicable Law to store the personal data; and
9.5.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and allow for audits by the User Organisation or the User Organisation's designated auditor and immediately inform the User Organisation if, in the opinion of Payapps.com, an instruction infringes the Data Protection Legislation.
9.6 The User Organisation consentsto Payapps.com appointing [THIRD-PARTY PROCESSOR] as a third-party processor of personal data under thisagreement. The Payapps.com confirms that it has entered or (as the case may be)will enter with the third-party processor into a written agreement [substantially on that thirdparty's standard terms of business OR incorporating terms which are substantially similar to those set out in this clause 6] and in either case which Payapps.com [confirms] OR [undertakes] reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the User Organisation and Payapps.com, Payapps.com shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
9.7 Each Party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents tocomply with any of its obligations under this clause
9.9 The User Organisation and/or Authorised User acknowledges that Payapps.com is reliant on the User Organisation and/or Authorised User for direction as to the extent to which Payapps.com is entitled to use and process the User Content. Consequently, Payapps.com will not be liable for any claim brought by a Data Subject arisingfrom any action or omission by Payapps.com, to the extent that such action or omission resulted directly from the User Organisation and/or Authorised User instructions.
10.1 The User Organisation hereby makes the following warranties to Payapps.com:
10.1.1 that each of the User Organisation’s Authorised Users will use her or his best endeavours to upload the User Organisation’s User Content to the Web Site to the maximum extent necessary in order for Payapps.com to properly provide the Services; and
10.1.2 that all of the User Content uploaded to the Web Site by any person using a User Code under this Agreementis accurate, suitable, complete and current for the Purpose; and
10.1.3 that all of the User Content uploaded to the Web Site by any person using a User Code under this Agreement is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site; and
10.1.4 that all of the User Content uploaded to the Web Site by any person using a User Code under this Agreement will not infringe any third party’s Intellectual Property Rights in any part of the World; and
10.1.5 without limiting the generality under clause 10.1, that all of the User Content uploaded to the Web Site by any person using a User Code under this Agreement will not in any way breach any civil or criminal law of the Commonwealth, State and any Territory of the Commonwealth of Australia and any criminal or civil law in any other country of the World.
11 Subscription Plan and ServiceFee
11.1 The Subscription Plan is herein incorporated into this Agreement by reference.
11.2 The User Organisation agrees to pay Payapps.com the Service Fee in the time and manner specified inthe Subscription Plan.
11.3 For the avoidance of doubt of clause 11.2:1
1.3.1 the Service Fee must be paid by the User to Payapps.com monthly in arrears, after the provision of the Services by Payapps.com for that month; and
11.3.2 Payapps.com will issue a VAT invoice to the User by e-mail on a monthly basis upon completion of the Services for that completed month.
11.4 No refund of any part of the Service Fee will be paid to the User Organisation if in the event of earlier termination of this Agreement by either Party.
11.5 If Payapps.com has not received payment of any sum due under this Agreement including the Service Fee within 30 days after the due date, and without prejudice to any other rights and remedies of Payapps.com:
11.5.1 may, without liability to theUser Organisation, disable the User Organisation’s password, account and access to all or part of the Services, Web Site and Web Site Content and Payapps.com shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
11.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
12 Confidential Information
12.1 In respect of each Party’s Confidential Information, the other Party agrees to:
12.1.1 keep it confidential; and
12.1.2 use it on the Web Site only for the Purpose; and
12.1.3 not make any copies of it from the Web Site other than strictly required for the Purpose; and
12.1.4 limit its disclosure to those of the other Party’s directors, officers and employees, on a need to know basis for the Purpose; and
12.1.5 not disclose it to any third party other than those persons referred to under clause 12.1.4 above, unless with the prior written consent of the first mentioned Party; and
12.1.6 (when applicable) mark each document embodying the first mentioned Party’s Confidential Information, with the following notation: ”Confidential Information and Copyright © of (the name of the first mentioned Party);”
12.2 Each Party’s obligations under this clause 12 will survive expiration or earlier termination of this Agreement and will continue until such time as each part of the other Party’s Confidential Information lawfully becomes part of the public domain
13 Changes to these Terms and Conditions
13.1 If Payapps.com decides in its sole discretion to amend any term or condition of this Agreement, Payapps.com must as soon as practicable, post the written notice to the User Organisation of such amendments and display such amendments on the Web Site (the “Amendments”)including by way of e-mail to the User Organisation.
13.2 Subject to clause 13.3, if any of the Amendments are unacceptable to the User Organisation the User Organisation may terminate the Services immediately on written notice.
13.3 Upon receipt of the Amendments, if the User Organisation’s Authorised Users continue to use the Web Site or Services, the User Organisation is deemed to have agreed to the Amendments for the purpose of this Agreement, commencing from the date of the receipt of the Amendments under this clause 13.
14 Use of a Party’s Trade Mark and Corporate Name
14.1 For the term of this Agreement, the User Organisation hereby grants to Payapps.com and Payapps.com herebyaccepts from the User Organisation, a royalty-free, non-exclusive, non-transferable and revocable licence throughout the World to use the UserOrganisation’s Trade Mark on the Web Site.
14.2 For the avoidance of doubt:
14.2.1 Payapps.com will have no otherrights granted to use the Trade Mark for any other purpose other than provided under clause 14.1.
14.2.2 Payapps.com will have no rightsto grant sub-licences of its rights granted under clause 14.1. in any way whatsoever.
14.3 All good will associated with the use of the Trade Mark by Payapps.com under this Agreement, will accrue immediately for the benefit of the User Organisation and will be solely owned by the User Oganisation at the time of creation.
14.4 The User Organisation will have the right to use the name or corporate logo of Payapps.com in relation to this Agreement, subject to Payapps.com’s prior written consent and any other conditions attached to such consent.
15 User’s Web Site Behaviour
15.1 Without limiting the generality of all of the User Organisation’s obligations under this Agreement, the User Organisation agrees that it and its Authorised Users must not undertake or procure any third party to do any of the following:
15.1.1 removing or obscuring, by framing or otherwise, any portion of the Web Site, the Web Site Content and the User Content; and
15.1.2 hyperlinking the Web Site, the Web Site Content and the User Content to a third party website; and
15.1.3 communicating over the Internet (including by way of e-mail) any part of the Web Site, the Web Site Content and the User Content to any third party not permitted by this Agreement; and
15.1.4 framing, mirroring, scraping or data-mining the Web Site, the Web Site Content and the User Content; and
15.1.5 leaving the computing devices (including without limitation, the computer terminal, iPad™, iPhone™, any other smart phone or tablet) unattended whilst accessing the Web Site; and
15.1.6 allowing any directors, officers, employees, agents and consultants of the User Organisation who are not Authorised Users to access the Web Site using a User Code;
15.1.7 using a third party’s User Code to access the Web Site; and
15.1.8 creating a false identity on the Web Site; and
(a) uploading any User Content that is inappropriate, defamatory, pornographic or obscene; and
(b) any other internet based activity, which, in the sole discretion of Payapps.com, is not in the best interests of the proper functioning, performance and integrity of the Web Site.
16 Warranties and Limitation of Liability
16.1 Except as expressly and specifically provided in this Agreement:
16.1.1 the User Organisation assumes sole responsibility for results obtained from the use of the Services, Web Site and Web Site Content by the User Organisation, and for conclusions drawn from such use. Payapps.com shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Payapps.com by the User Organisation in connection with the Services, Web Site and Web Site Content or any actions taken by Payapps.com at the User Organisation’s direction;
16.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever impliedby statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
16.1.3 the Services, Web Site and Web Site Content are provided to the User Organisation and Authorised Users on an “as is” and “as available” basis.
16.2 Nothing in this Agreement excludes the liability of Payapps.com:
16.2.1 for death or personal injury caused by Payapps.com’s negligence; or for fraud or fraudulentmisrepresentation.
16.3 Subject to clause 16.1 and 16.2:
16.3.1 Payapps.com 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 Agreement; and
16.3.2 Payapps.com’s total aggregate liability in contract (including in respect of the indemnities under this Agreement) tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Service Fees paid by the User Organisation during the 12 months immediately preceding the date on which the claim arose.
16.4 Subject to clause 16.1 and 16.2, Payapps.com has not made and hereby excludes all other warranties, conditions, terms and undertakings whether express or implied, written or oral, statutory or otherwise, including any implied warranty of merchantability or fitness for purpose, in respect of the Services, the Web Site and the Web Site Content. To the maximum extent permitted by the laws of England, any conditions or warranties imposed by such legislation are hereby excluded. In so far as liability under such legislation may not be excluded, such liability is limited at the exclusive option of Payapps.com to:
16.4.1 the re-performance of the Services; or
16.4.2 the payment of the costs ofhaving the Services being re-performed again.
16.5 Without limiting the generalityof this clause 16, Payapps.com hereby excludes the following warranties that the:
16.5.1 Web Site will be operating continuously and uninterrupted; and
16.5.2 Web Site and Web Site Content is free from any computer virus, computer codes and computer files, that are capable of interrupting or corrupting the functionality of the Web Site; and
16.5.3 Web Site and the Web Site Content will not infringe any third party’s Intellectual Property Rights in any part of the World; and
16.5.4 User’s software, computing devices and Internet service, will be fit for purpose for use with the Web Site.
16.6 Subject to the User Organisation uploading the appropriate User Content, the Web Site and the Services provide a framework to support the User Organisation's compliance with its payment and payment notification obligations under the Housing Grants, Construction and Regeneration Act 1996 (as amended by the Local Democracy, Economic Development and Construction Act 2009).
16.7 The User Organisation hereby releases and indemnifies and continues to release and indemnify Payapps.com (and all of its respective directors, officers, employees, agents, contractors, sub-contractors and representatives) all individually and collectively referred to in this clause 16.6 as the “Indemnified Party”) from and against all actions, claims, proceedings and demands, which may be brought by any person whether against the Indemnified Party or both the User Organisation and the Indemnified Party, either on their own or jointly with third parties, in respect of any loss, injury or damage (whether personal, property, financial, consequential financial loss or infringement of any Intellectual Property Rights throughout the World) howsoever arising, that the Indemnified Party may suffer, incur or sustain arising out of or in connection with:
16.7.1 the User Organisation (or any Authorised User) illegal, negligent acts or omissions in relation to this Agreement or its use of the Services; or
16.7.2 the User Organisation’s (or any Authorised User) breach of any of its obligations under this Agreement; or
16.7.3 the use of a User Code by any person; or
16.7.4 any person accessing and using the Web Site using a User Code; or
16.7.5 any person uploading User Content onto the Web Site using a User Code; or
16.7.6 the User Organisation’s (or any Authorised User) access the Web Site Content; or
16.7.7 the User Organisation’s (or any Authorised User) use of the Trade Mark,and from and against all damages, costs and expenses incurred or sustained, in defending or settling any such actions, claims, proceedings or demands.
16.8 The User Organisation hereby warrants to Payapps.com that:
16.8.1 it owns all title, right and interest in and to the Trade Mark (including all Intellectual Property Rights throughout the World subsisting therein);
16.8.2 to its actual knowledge, information and belief as of the Commencement Date and after making all enquiries, the use of the Trade Mark by Payapps.com will not infringe any third party’s Intellectual Property Rights in any part of the World.
16.9 Whilst Payapps.com provides the Services and the Web Site under this Agreement, the User Organisation must seek independent legal and accounting advice to satisfy itself that it has complied with all applicable contractual, legal and statutory obligations, including those statutory obligations under the Housing Grants, Construction and Regeneration Act 1996.
16.10 This clause 16 will survive expiration and earlier termination of this Agreement.
17 Third Party Proceedings
17.1 Each Party must immediately notify the other Party of:
17.1.1 any claim or allegation that the exercise of any of its rights under this Agreement constitutes an infringement of the rights, including the Intellectual Property Rights of anythird party in any part of the World in respect of the Web Site, the Web Site Content and the Trade Mark; or
17.1.2 any third party’s actual infringement or threatened infringement of any of the Party’s rights, including any Intellectual Property Rights in any part of the World in respect of the Web Site, the Web Site Content and the Trade Mark:-that it becomes aware of.1
7.2 The Parties must confer as to what steps, if any, are to be taken against any person infringing any part of the Web Site, the Web Site Content and the Trade Mark.
17.3 If Payapps.com decides to commence legal proceedings, Payapps.com will be responsible for all legal costs, damages and expenses incurred, sustained or awarded and will be solely entitled to any damages, account of profits or other compensation recovered by such applications or legal proceedings. The User Organisation must furnish all such necessary assistance in relation to those applications or legal proceedings, at the cost of Payapps.com.
17.3.1 The terms and conditions ofthis clause 17 will survive expiration or earlier termination of this Agreement.
18 Value Added Tax (VAT)
18.1 Any amount which is payable as a consequence of this Agreement, including the Service Fee is expressed exclusive of VAT, unless expressly stated otherwise.
18.2 Where any taxable supply for VAT purposes is made under this Agreement by Payapps.com to the User Organisation, the User Organisation shall, on receipt of a valid VAT invoice from Payapps.com, pay to Payapps.com such additional amounts in respect of VAT as are chargeable on the supply of Services at the same time as payment is due for the supply of the Services.
19 Force Majeure
19.1 Where a Party is unable, wholly or in part, by any Force Majeure Circumstance to carry out any obligation under this Agreement and that Party:
19.1.1 gives the other Party prompt notice of that Force Majeure Circumstance, including reasonable particulars; and
19.1.2 uses reasonable endeavours to remove that Force Majeure Circumstance as quickly as possible: that obligation is suspended so far as it is affected by the Force Majeure Circumstance during the continuance of that Force Majeure Circumstance and that Party shall be allowed a reasonable extension of time to perform its obligations.
19.2 If the Force Majeure Circumstance continues for a period of one (1) calendar month, the Parties will meet in good faith to achieve a satisfactory resolution to the problem.
19.3 An obligation to pay money isnot excused by a Force Majeure Circumstance.
20.1 This Agreement and the Services may be immediately terminated by either Party (the “Terminating Party”) in its sole discretion without cause, by providing thirty (30) days advanced written notice to the other Party (the “Defaulting Party”).
20.2 This Agreement and the Services may be terminated by either Party in its sole discretion (also the “Terminating Party”) by providing written notice to the other Party (also the “Defaulting Party”) where the Defaulting Party has committed a breach of any of its obligations under this Agreement and the Defaulting Party has not rectified the breach (where the breach is capable of remedy) within seven (7) working daysfrom the date of written notice by the Terminating Party to rectify the breach such termination to be immediately effective from the date of the firstmentioned written notice.
20.3 This Agreement and the Services may also be terminated immediately by either Party in its sole discretion (also a “Terminating Party”) by providing written notice to the other Party (also a “Defaulting Party”) on the happening of any one or more of the following events:
20.3.1 if the Defaulting Party breaches any of its obligations under this Agreement, where the breach is incapable of remedy; or
20.3.2 if the Defaulting Party is the subject of winding up (voluntary or otherwise) liquidation proceedings, whether voluntary or compulsory, otherwise than for the purpose of and followed by, are construction, amalgamation or reorganisation; or
20.3.3 if the Defaulting Party has become insolvent, bankrupt or is subject to the appointment of a mortgagee, a receiver or manager or an inspector to investigate its affairs, enters into any arrangement or composition with its creditors generally, or is unable to pay its debts as and when they become due; or
20.3.4 if execution is levied upon allor any part of the assets of the Defaulting Party, except where the execution is contested in good faith within seven (7) days after it is levied, payment ismade in full to the judgment creditor in question of all amounts owing to such judgment creditor;
20.3.5 such termination to be immediately effective upon receipt by the Defaulting Party of the first mentioned written notice.
20.4 In the event of termination of this Agreement and the Services pursuant to clause 20.1 or 20.2 or 20.3:
20.4.1 each Party is entitled to retain all monies (including, if applicable, the Service Fee) received or paid prior to the date of termination; and
20.4.2 each Party must promptly pay the other Party any monies (including, if applicable, the Service Fee) outstanding, as at the date of termination; and
20.4.3 if the Defaulting Party is the User Organisation, the User Organisation must immediately deliver up to Payapps.com (as the Terminating Party) all written and electronic documents relating to all Web Site Content (and the Defaulting Party must not retain copies in any form) in its possession or control; and
20.4.4 each Party must maintain the confidentiality of the Confidential Information of the other Party in accordance with clause 12 and
20.4.5 the licence granted by the User Organisation to Payapps.com under clause 8 shal lcontinue in perpetuity;
20.4.6 the licence granted by the User to Payapps.com under clause 14 shall terminate; and
20.4.7 com must immediately remove the Trade Mark from the Web Site.
20.5 Termination of this Agreementand the Services for any reason whatsoever:
20.5.1 is without prejudice to therights of each Party to sue for and recover any fees, monies, or payments thendue and to the rights of that Party in respect of any previous breach of any ofthe provisions of this Agreement; and
20.5.2 does not relieve either Party of its respective obligations of confidentiality (clause 12) and risk management (clause 16) contained herein;
20.5.3 clauses 6,7,8,9,10,12,16 and 20 will survive expiration or earlier termination of this Agreement.
20.6 This clause 20 will survive expiration or earlier termination of this Agreement.
21 Dispute Resolution
21.1 Neither Party may commence any court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute, unless it has complied with this clause 21.
21.2 Any Party claiming that a dispute has arisen must notify the other Party in writing, giving details by recorded delivery (the “Dispute”).
21.3 During twenty-one (21) days after notice of the Dispute (the “Initial Period”) each Party must use its reasonable efforts to resolve the Dispute by good faith negotiation between the Parties.
21.4 If the Parties are unable to resolve the Dispute within the Initial Period, each Party agrees that the Dispute must be referred to meditation at the request of either Party to:
(a) a mediator agreed by the Parties; or(b) if the Parties are unable to agree on a mediator, within seven (7) days after the end of the Initial Period, a mediator nominated by the Centre for Effective Dispute Resolution.
21.5 If the Parties fail to resolve the Dispute in accordance with clause 21.4, by thirty (30) days upon referral to the mediator, either Party is free to initiate legal proceedings.
22 Applicable Law
22.1 This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed with the laws of England.
22.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
23.1 The User Organisation must not assign, transfer, subcontract, mortgage, charge or declare a trust over any of its rights, title and interest under this Agreement to any third party, unless it has obtained the prior written consent of Payapps.com, which may be withheld by Payapps.com in its absolute discretion.
24 No Waiver
24.1 A Party’s failure to exercise or delay in exercising any power or right, does not operate as a waiver of that power or right. The exercise of a power or right, does not preclude its future exercise or the exercise of any other power or right.
25.1 This Agreement may only be amended or modified by mutual written agreement of the Parties.
26.1 Each word, phrase, sentence, paragraph and clause (a “Provision”) of this Agreement is severable.26.2 If a court determines that a Provision is unenforceable, illegal or void then the Court may sever that Provision. The Parties agree that the unenforceability, illegality or voidness of the severed Provision, will not affect the validity of the other Provisions of this Agreement.
27.1 Any notice to be given by a Party to the other Party under this Agreement must be:
27.1.1 writing; and
27.1.2 directed to the recipient’s e-mail address specified in the User Code or the Web Site (as the case may be) with a read request receipt and delivery receipt option; and
27.1.3 sent by e-mail to that e-mail address and which will be deemed to be duly given upon receipt of the request receipt and delivery receipt for the sender.
27.2 Either Party will have the right to amend its address for notices under this clause 27.1, subject to prior written notice to the other Party.
27.3 For the avoidance of doubt and without limiting the generality of clause 27.2, Payapps.com will have the right to amend its address for notices on the Web Site itself without further notice to the User Organisation.
28.1 Each Party is responsible for its own legal costs incurred in relation to the negotiation and settlement of this Agreement.29 Relationship
29.1 The Parties agree that this document does not create or evidence the relationship between them of partnership, joint venture, employer and employee, trust, agency or otherwise but that of independent contractors.
29.2 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.
30.1 The User Organisation’s (and each Authorised User’s) rights to access the Web Site under this Agreement are subject to the Privacy Statement as amended from time to time, which is incorporated herein by reference.
31 Entire Agreement
31.1 This Agreement contains the whole understanding of the Parties relating to its subject matter and it supersedes and cancels any and all representations, agreements, commitments, warranties and promises, made by the same Parties with respect to the same subject matter. Any purported representations, agreements, commitments, warranties and promises of the Parties not recorded in this Agreement are of no effect. Nothing in this clause shall limit or exclude any liability for fraud.
32.1 In the event of any inconsistency, the following items prevail over the other items from highest paramountcy to lowest paramountcy as herein presented:
32.1.1 the terms and conditions of this Agreement;
32.1.2 the terms and conditions of the Schedule;
32.1.3 the terms and conditions of the Subscription Plan; and
32.1.4 the terms and conditions of Privacy Statement;