Software Licence for Resident Hosting

These are the terms and conditions (the “agreement”) on which you (the “Resident”) agree to use the Services (as defined below) provided by Lavanda Ventures Ltd, a company incorporated and registered in England and Wales with company number 09059982 and whose registered office is at The Record Hall Business Centre, 16-16a Baldwin’s Gardens, London EC1N 7RJ (the “Supplier”).

If you wish to use the Services, please click the “I Accept” button in the Lavanda App to acknowledge acceptance of the terms set out in this agreement. The Supplier and the Resident will then be deemed to have accepted the terms of this agreement on the Effective Date. This agreement will then govern the relationship between the Resident and the Supplier and any use the Resident makes of the Services (as defined below).

If the Resident does not accept the terms set out in this agreement, the Resident may not use the Services.

AGREED TERMS

1 INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Applicable Law: all applicable laws, enactments rules, regulations, orders, regulatory policies, regulatory permits and licences, and any mandatory instructions or requests of a regulator, in each case which are in force from time to time.

Block: means the freehold block or portfolio of residential flats, serviced apartment units or hotel (or similar) in which the Property is located.

Block Decision Maker means, in respect of the Block, either the freeholder or any party with authority to conclude contracts on behalf of the freeholder (including, but not limited to, a management company).

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.6 or clause 10.7.

Controller: has the meaning set out in article 4 of the GDPR.

Data Subject: an individual who is the subject of Personal Data.

Data Protection Laws: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy.

Documentation: the document made available to the Resident by the Supplier online via http://www.staging1.lavanda.co.uk or such other web address notified by the Supplier to the Resident from time to time which sets out a description of the Software and the user instructions for the Software.

Effective Date: the date on which the Resident clicks the “I Accept” button below.

GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679).

Guest: means a person who rents the Property from the Resident on a short term basis during the Subscription Term.

Guest Revenue: means the rental fee payable by a Guest in respect of a Relevant Short Term Let.

International Organisation: has the meaning given to it in article 4 of the GDPR.

Intellectual Property Rights: patents, trademarks, service marks, design rights, domain names, database rights, registrations and applications for registration for any of the foregoing, copyright and all rights in the nature of copyright, trade secrets, know-how and other industrial and intellectual property rights, wherever subsisting.

Lease: means the assured short term tenancy agreement in force between the Block Decision Maker and the Resident granting the Resident a right to occupy the Property.

Listing Site: means any website or mobile app which lists properties available for short term lets, including, but not limited to, www.airbnb.co.uk and www.homeaway.co.uk.

Normal Business Hours: 9 am to 5 pm local UK time, each Business Day.

Personal Data: has the meaning set out in article 4 of the GDPR and relates only to personal data, or any part of such personal data, comprising the Resident Data.

Processing: has the meaning set out in article 4 of the GDPR.

Processor: has the meaning set out in article 4 of the GDPR.

Property Manager: a third party provider of property management services in respect of short term lets.

Relevant Short Term Let: means a Short Term Let in respect of which the Resident does not engage a Property Manager, or any other third party, to provide property management services.

Resident Data: the data inputted by the Resident or the Supplier on the Resident’s behalf for the purpose of using the Services or facilitating the Resident’s use of the Services.

Resident Relevant Contract: means a contract entered into between the Resident and a Guest governing a Relevant Short Term Let and in respect of which the Resident utilises the Services.

Resident Revenue: means all fees, including VAT, payable to the Resident by a Guest pursuant to the terms of a Resident Relevant Contract.

Records: has the meaning given to it clause 4.4.8.

Property: means the property within the Block occupied by the Resident pursuant to the terms of the Lease and in respect of which Short Term Lets are made during the Subscription Term.

Restrictions: means the rules applicable to Short Term Lets set out in Schedule 2.

Services: the provision by the Supplier to the Resident of: (i) the licence to use the Software and Documentation pursuant to clause 2; and (ii) the Support Services, as more particularly described in the Documentation and the Support Policy respectively.

Side Letter: means a side letter to the Lease made between the Resident and the Block Decision Maker pursuant to which the Block Decision Maker authorises the Resident to make Short Term Lets of the Property.

Short Term Let: means the letting of the Property on a short term basis to a Guest by the Resident during the Subscription Term.

Software: the Lavanda online software application (or such other name as the Supplier may adopt for it from time to time) provided by the Supplier via http://www.staging1.lavanda.co.uk (or such other web address notified by the Supplier to the Resident from time to time).

Subscription Term: has the meaning given in clause 13.1.

Support Policy: the Supplier’s policy setting out the terms of the technical helpdesk support service in relation to the use of the Software as made available online via http://www.staging1.lavanda.co.uk or such other web address notified by the Supplier to the Resident from time to time.

Support Services: the technical helpdesk support services to be provided by the Supplier to the Resident in accordance with clause 3.3 and the terms of the Support Policy.

UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.9 A reference to writing or written includes and e-mail.

1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2 LICENCE

2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Resident a non-exclusive, non-transferable right, without the right to grant sub-licences, use the Software and the Documentation during the Subscription Term solely for the Resident’s internal business operations.

2.2 The Resident undertakes that he shall keep a secure password for his use of the Software and Documentation, and shall keep that password confidential.

2.3 The Resident shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:

2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.3.2 facilitates illegal activity;

2.3.3. depicts sexually explicit images;

2.3.4 promotes unlawful violence;

2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.3.6 is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right, without liability or prejudice to its other rights to the Resident, to disable the Resident’s access to any material that breaches the provisions of this clause.

2.4 The Resident shall not:

2.4.1 except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

2.4.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

2.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

2.4.3 use the Services and/or Documentation to provide services to third parties; or

2.4.4 subject to clause 20, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party; or

2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.5 The Resident shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.6 The rights provided under this clause 2 are granted to the Resident only.

3 SERVICES, TRAINING AND SUPPORT

3.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Resident on and subject to the terms of this agreement.

3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

3.2.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Resident at least 6 Normal Business Hours’ notice in advance.

3.3 The Supplier shall provide the Support Services to the Resident during Normal Business Hours. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time provided that such amendments do not materially prejudice the ability of the Resident to use and access the Software.

4 RESIDENT DATA

4.1 Both the Supplier and the Resident will comply with all applicable requirements of the Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, the Supplier or the Resident’s obligations or rights under the Data Protection Laws.

4.2 The parties acknowledge that for the purposes of the Data Protection Laws, the Resident is the Controller and the Supplier is the Processor. Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject.

4.3 Without prejudice to the generality of clause 4.1, the Resident shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.

4.4 Without prejudice to the generality of clause 4.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:

4.4.1 process that Personal Data solely to the extent necessary to provide the Services in accordance with the terms of this agreement and shall not process the Personal Data for any other purpose other than on the documented written instructions of the Resident, unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Resident of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Resident;

4.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

4.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

4.4.4 not transfer any Personal Data outside of the European Economic Area unless the Supplier complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred;

4.4.5 assist the Resident, at the Resident’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;

4.4.6 notify the Resident without undue delay on becoming aware of a Personal Data breach;

4.4.7 at the written direction of the Resident, delete or return Personal Data and copies thereof to the Resident on termination of the agreement unless required by Applicable Law to store the Personal Data; and

4.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 4 (the “Records”) and allow for audits by the Resident or its designated auditor of such Records, provided that such audit rights may only be exercised by the Resident once during each calendar year of the Subscription Term and the Resident agrees that its personnel and/or those of its designated auditor must abide by all safety and security rules in operation at the Supplier’s premises from time to time or notified to them by the Supplier.

4.5 The Resident consents to the appointment of all third-party processors of Personal Data that the Supplier has appointed as of the date of this agreement. The Supplier confirms that it may only appoint additional third-party processors of Personal Data if the Resident provides the Supplier with its consent prior to each such appointment. The Supplier has or, as the case may be, will enter into written agreements with each third-party processor of Personal Data incorporating terms which are substantially similar to those set out in this clause 4 and which the Supplier confirms reflects and will continue to reflect the requirements of the Data Protection Laws. As between the Resident and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.5.

5 THIRD PARTY PROVIDERS

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

6 SUPPLIER’S OBLIGATIONS

6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and Support Policy and with reasonable skill and care.

6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Resident with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Resident’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:

6.2.1 does not warrant that the Resident’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Resident through the Services will meet the Resident’s requirements; and

6.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Resident acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

7 RESIDENT’S OBLIGATIONS

7.1 The Resident shall:

7.1.1 promptly provide the Supplier with:

7.1.1.1 all necessary co-operation in relation to this agreement; and

7.1.1.2 all necessary access to such information as may be required by the Supplier in order to provide the Services, including but not limited to Resident Data, security access information and Listing Site host profile login details (username and password) relating to the Property;

7.1.2 materially comply with all Applicable Laws with respect to its activities under this agreement;

7.1.3 carry out all other Resident responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Resident’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

7.1.4 use the Services and the Documentation in accordance with the terms and conditions of this agreement;

7.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

7.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;

7.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Resident’s network connections or telecommunications links or caused by the internet; and

7.1.8 ensure that none of the Restrictions are breached during the course of any Short Term Let.

7.2 The Resident hereby acknowledges that it may enter into the Side Letter using the functionality of the Software. The Resident further acknowledges that the Supplier does not and cannot provide him with any advice on which he can rely relating to the terms of any draft Side Letter presented to the Resident via the Software. The Resident must obtain independent professional and/or specialist legal advice before entering into, or refraining from entering into, the Side Letter.

8 PROPRIETARY RIGHTS

8.1 The Resident acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services and the Documentation and Support Policy. Except as expressly stated herein, this agreement does not grant the Resident any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services, Support Policy or the Documentation.

8.2 The Supplier confirms that it has all the rights in relation to the Services, Support Policy and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

9 CONFIDENTIALITY

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

9.1.2 was in the other party’s lawful possession before the disclosure;

9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.

9.2 Subject to clause 9.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information is only disclosed to such of its personnel, employees, subcontractors and agents who need to know it for the purposes of discharging its obligations under this agreement and to ensure that such third parties do not disclose or distribute such Confidential Information in violation of the terms of this agreement. Each party shall ensure that its personnel, employees, subcontractors and agents are subject to obligations of confidentiality corresponding to those which bind it under this agreement. The disclosing party shall be liable to the other party for the actions or omissions of its personnel, employees, subcontractors and agents in relation to Confidential Information as if they were the actions and omissions of the disclosing party and the Supplier may, without the need to notify the Resident, disclose the Confidential Information of the Resident to the Block Decision Maker.

9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

9.5 Save as expressly set out in this agreement, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

9.6 The Resident acknowledges that all personal data inputted into the Software by the Supplier (save for the Resident Data) constitutes the Supplier’s Confidential Information.

9.7 The Supplier acknowledges that the Resident Data is the Confidential Information of the Resident.

9.8 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

9.9 The above provisions of this clause 9 shall survive termination of this agreement, however arising.

10 INDEMNITY

10.1 The Supplier shall defend the Resident against any claim that the Services, Support Policy or Documentation infringes any Intellectual Property Rights of a third party, and shall indemnify the Resident for any amounts awarded against the Resident in judgment or settlement of such claims, provided that:

10.1.1 the Supplier is given prompt notice of any such claim;

10.1.2 the Resident provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

10.1.3 the Supplier is given sole authority to defend or settle the claim.

10.2 In the defence or settlement of any claim, the Supplier may procure the right for the Resident to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 5 Business Days’ notice to the Resident without any additional liability or obligation to pay liquidated damages or other additional costs to the Resident.

10.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Resident to the extent that the alleged infringement is based on:

10.3.1 a modification of the Services, Support Policy or Documentation by anyone other than the Supplier; or

10.3.2 the Resident’s use of the Services, Support Policy or Documentation in a manner contrary to the instructions given to the Resident by the Supplier; or

10.3.3 the Resident’s use of the Services, Support Policy or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

10.4 The foregoing and clause 11.3.2 state the Resident’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.

11 LIMITATION OF LIABILITY

11.1 Except as expressly and specifically provided in this agreement:

11.1.1 the Resident assumes sole responsibility for results obtained from the use of the Services, Support Policy and the Documentation by the Resident (including his/her entrance into the Side Letter), and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Resident in connection with the Services (including the Side Letter), or any actions taken by the Supplier at the Resident’s direction;

11.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this agreement; and

11.1.3 the Services, Support Policy and the Documentation are provided to the Resident on an “as is” basis.

11.2 Nothing in this agreement excludes the liability of the Supplier:

11.2.1 for death or personal injury caused by the Supplier’s negligence; or

11.2.2 for fraud or fraudulent misrepresentation.

11.3 Subject to clause 11.1 and clause 11.2:

11.3.1 the Supplier 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 pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

11.3.2 the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 10.1), 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 £100.

12 TERM AND TERMINATION

12.1 This agreement shall, unless otherwise terminated as expressly provided for in this agreement, commence on the Effective Date and shall continue until the Supplier gives the Resident immediate notice in writing or via the Lavanda platform to terminate the agreement (the “Subscription Term”).

12.2 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Resident if the Resident breaches any of the Restrictions during the Subscription Term.

12.3 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

12.3.1 the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;

12.3.2 the other party repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;

12.3.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

12.3.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;

12.3.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);

12.3.6 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);

12.3.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

12.3.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

12.3.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

12.3.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3 to clause 9.9 (inclusive); or

12.3.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.4 On termination of this agreement for any reason:

12.4.1 the following clauses shall remain in full force and effect: clause 1, clause 9, clause 11, clause 12.4 and clauses 14 to 24;

12.4.2 all licences granted under this agreement shall immediately terminate and the Resident shall immediately cease all use of the Services, Support Policy and/or the Documentation;

12.4.3 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

12.4.4 in accordance with the Resident’s reasonable written requirements the Supplier shall either: (i) destroy or otherwise dispose of any of the Resident Data in its possession (subject to the terms of applicable Data Protection Laws) or (ii) deliver to the Resident (in a format and on the media reasonably stipulated by the Resident) the then most recent back-up of the Resident Data and following any such delivery, the Supplier shall destroy or otherwise dispose of all copies of the Resident Data in its possession unless any applicable Data Protection Laws require its continued storage; and

12.4.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

13 FORCE MAJEURE

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

14 VARIATION

14.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15 WAIVER

15.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16 RIGHTS AND REMEDIES

16.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

17 SEVERANCE

17.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18 ENTIRE AGREEMENT

18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

18.4 Nothing in this clause shall limit or exclude any liability for fraud.

19 ASSIGNMENT

19.1 The Resident shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

19.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20 NO PARTNERSHIP OR AGENCY

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

21 THIRD PARTY RIGHTS

21.1 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

22 NOTICES

22.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

22.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company); or

22.1.2 sent by email to the contact email address provided for that party as set out on the Software.

22.2 Any notice shall be deemed to have been received:

22.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

22.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service; or

22.2.3 if sent by email, on its transmission.

22.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23 GOVERNING LAW

23.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

24 JURISDICTION

24.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

Schedule 1 – PROCESSING, PERSONAL DATA AND DATA SUBJECTS

SCOPE AND PURPOSE OF PROCESSING

The Supplier will process the Personal Data in order to provide the Services to the Resident.

NATURE

The Supplier will store, transfer and allow the Resident to access the Personal Data via the Software.

DURATION OF THE PROCESSING

The Supplier will process the Personal Data for the duration of the Subscription Term.

TYPES OF PERSONAL DATA

Names, titles, postal addresses, telephone numbers and email addresses.

CATEGORIES OF DATA SUBJECT

Resident and Guests.