1.
Interpretation
1.1
The definitions and rules of interpretation in this clause apply in these Terms
- Authorised Users
- those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
- Business Day
- a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Change of Control
- shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
- Confidential Information
- information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.
- Customer
- the person or firm who purchases Services from Keepl.
- Customer Data
- the data inputted by the Customer, Authorised Users, or Keepl on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
- EU GDPR
- the General Data Protection Regulation ((EU) 2016/679).
- Keepl
- Keepl Social Limited, a company incorporated in England and Wales with company number 13157100 and whose registered office is at The Stamp Exchange, Westgate Road, NE1 1SA.
- Keepl’s Website
- the website operated by Keepl with the following URL:
- Normal Business Hours
- 9.00 am to 5.00 pm local UK time, each Business Day.
- Renewal Period
- as defined in clause 13.1.
- Services
- the subscription services provided by Keepl to the Customer under this Contract which allows paying subscribers access to a platform using the Software and made available via Keepl’s Website.
- Software
- the online software applications provided by Keepl as part of the Services.
- Subscription Fees
- the subscription fees payable by the Customer to Keepl for the User Subscriptions, as set out at registration for the Services via Keepl’s Website.
- Subscription Start Date
- the date on which the first payment of of the Subscription Fees has been made, on registration for the Services via Keepl’s Website.
- Subscription Term
- as set out in clause 13
- Support Services
- the services included within User Subscriptions as described in clause 4.3.
- Terms
- these terms and conditions, as amended from time to time in accordance with clause 15.
- UK GDPR
- has the meaning given in the Data Protection Act 2018.
- User Subscriptions
- the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services in accordance with the Terms.
- 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.
- Vulnerability
- a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.2
A person includes a natural person, corporate or unincorporated body (whether or not having
separate legal personality).
1.3
A reference to a party includes its personal representatives, successors and permitted assigns.
1.4
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted
and includes all subordinate legislation made under that legislation or legislative provision.
1.5
Any words following the terms including, include, in particular, for example or any similar
expression shall be interpreted as illustrative and shall not limit the sense of the words
preceding those terms.
2.
Basis of contract
2.1
The Contract shall be formed at the point at which the Customer places their order via Keepl’s
Website. By clicking accept and completing their order, the Customer agrees to be bound by
the terms of this contract.
2.2
Any samples, drawings, descriptive matter or advertising issued by Keepl and any descriptions
of the Services are issued or published for the sole purpose of giving an approximate idea of
the Services described in them. They shall not form part of the Contract nor have any
contractual force.
2.3
These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks
to impose or incorporate, or which are implied by law, trade custom, practice or course of
dealing.
2.4
All of these Terms shall apply to the supply of the Services.
3.
User subscriptions
3.1
Subject to the Customer purchasing the User Subscriptions in accordance with clause 8.1, the
restrictions set out in this clause 3 and the other terms and conditions of these Terms, Keepl
hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the
right to grant sublicences, to permit the Authorised Users to use the Services during the
Subscription Term solely for the Customer's internal business operations.
3.2
In relation to the Authorised Users, the Customer undertakes that:
3.2.1
the maximum number of Authorised Users that it authorises to access and use the
Services shall not exceed the number of User Subscriptions it has purchased from time
to time and in any event, this number shall be no more than 25 Authorised Users per
Customer;
3.2.2
it will not allow or suffer any User Subscription to be used by more than one individual
Authorised User unless it has been reassigned in its entirety to another individual
Authorised User, in which case the prior Authorised User shall no longer have any right
to access or use the Services;
3.2.3
each Authorised User shall keep a secure password for their use of the Services and
that each Authorised User shall keep their password confidential; and
3.2.4
it shall permit Keepl or Keepl's designated auditor to audit the Services and the
Customer's data processing facilities to audit compliance with these Terms. Each such
audit may be conducted no more than once per quarter, at Keepl's expense, and this
right shall be exercised with reasonable prior notice, in such a manner as not to
substantially interfere with the Customer's normal conduct of business.
3.3
The Customer shall not access, store, distribute or transmit any Viruses, or any material during
the course of its use of the Services that:
3.3.1
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially
or ethnically offensive;
3.3.2
facilitates illegal activity;
3.3.3
depicts sexually explicit images;
3.3.4
promotes unlawful violence;
3.3.5
is discriminatory based on race, gender, colour, religious belief, sexual orientation,
disability; or
3.3.6
is otherwise illegal or causes damage or injury to any person or property;
and Keepl reserves the right, without liability or prejudice to its other rights to the Customer, to
disable the Customer's access to any material that breaches the provisions of this clause.
3.4
The Customer shall not:
3.4.1
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
these Terms:
3.4.1.1
attempt to copy, modify, duplicate, create derivative works from, frame,
mirror, republish, download, display, transmit, or distribute all or any portion
of the Software in any form or media or by any means; or
3.4.1.2
attempt to de-compile, reverse compile, disassemble, reverse engineer or
otherwise reduce to human-perceivable form all or any part of the Software
or the Services; or
3.4.1.3
access all or any part of the Services in order to build a product or service
which competes with the Services; or
3.4.1.4
use the Services to provide services to third parties; or
3.4.1.5
subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute,
display, disclose, or otherwise commercially exploit, or otherwise make the
Services available to any third party except the Authorised Users, or
3.4.1.6
attempt to obtain, or assist third parties in obtaining, access to the Services,
other than as provided under this clause 3; or
3.4.1.7
introduce or permit the introduction of, any Virus or Vulnerability into the
Services or Keepl's network and information systems.
3.5
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or
use of, the Services and, in the event of any such unauthorised access or use, promptly notify
Keepl.
3.6
The rights provided under this clause 3 are granted to the Customer only and shall not be
considered granted to any subsidiary or holding company of the Customer.
4.
Services
4.1
Keepl shall, during the Subscription Term, provide the Services to the Customer on and subject
to the terms of these Terms.
4.2
Keepl shall use commercially reasonable endeavours to make the Services available 24 hours
a day, seven days a week, except for:
4.2.1
planned maintenance carried out during the maintenance window of 7pm to 7am UK
time; and
4.2.2
unscheduled maintenance or outages during Normal Business Hours in the event that
this is absolutely required.
4.3
Keepl will, as part of the Services and at no additional cost to the Customer, provide the
Customer with Keepl's standard customer support services during Normal Business Hours.
5.
Data protection
5.1
Both parties agree to comply with all applicable requirements of Applicable Data Protection
Laws.
6.
Keepl's obligations
6.1
Keepl shall perform the Services substantially in accordance with these Terms and with
reasonable skill and care.
6.2
Keepl's obligations at clause 6.1 shall not apply to the extent of any non-conformance which is
caused by use of the Services contrary to Keepl's instructions, or modification or alteration of
the Services by any party other than Keepl or Keepl's duly authorised contractors or agents. If
the Services do not conform with the terms of clause 6.1, Keepl will, at its expense, use
reasonable commercial endeavours to correct any such non-conformance promptly. Such
correction constitutes the Customer's sole and exclusive remedy for any breach of the
undertaking set out in clause 6.1.
6.3
Keepl:
6.3.1
does not warrant that:
6.3.1.1
the Customer's use of the Services will be uninterrupted or error-free; or
6.3.1.2
that the Services or the information obtained by the Customer through the
Services will meet the Customer's requirements; or
6.3.1.3
the Software or the Services will be free from Vulnerabilities or Viruses.
6.3.2
is not responsible for any delays, delivery failures, or any other loss or damage resulting
from the transfer of data over communications networks and facilities, including the
internet, and the Customer acknowledges that the Services may be subject to
limitations, delays and other problems inherent in the use of such communications
facilities.
6.4
These Terms shall not prevent Keepl from entering into similar contracts with third parties, or
from independently developing, using, selling or licensing documentation, products and/or
services which are similar to those provided under these Terms.
6.5
Keepl warrants that it has and will maintain all necessary licences, consents, and permissions
necessary for the performance of its obligations under these Terms.
6.6
Keepl shall follow its archiving procedures for Customer Data as set out in its backup procedure
as such document may be amended by Keepl in its sole discretion from time to time. In the
event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy
against Keepl shall be for Keepl to use reasonable commercial endeavours to restore the lost
or damaged Customer Data from the latest back-up of such Customer Data maintained by
Keepl in accordance with the archiving procedure described in its backup policy, which is
available on request. Keepl shall not be responsible for any loss, destruction, alteration or
disclosure of Customer Data caused by any third party (except those third parties sub-
contracted by Keepl to perform services related to Customer Data maintenance and back-up
for which it shall remain fully liable).
7.
Customer's obligations
7.1
The Customer shall:
7.1.1
provide Keepl with:
7.1.1.1
all necessary co-operation in relation to these Terms; and
7.1.1.2
all necessary access to such information as may be required by Keepl;
in order to provide the Services, including but not limited to Customer Data, security
access information and configuration services;
7.1.2
without affecting its other obligations under these Terms, comply with all applicable
laws and regulations with respect to its activities under these Terms;
7.1.3
carry out all other Customer responsibilities set out in these Terms in a timely and
efficient manner. In the event of any delays in the Customer's provision of such
assistance as agreed by the parties, Keepl may adjust any agreed timetable or delivery
schedule as reasonably necessary;
7.1.4
ensure that the Authorised Users use the Services in accordance with these Terms
and shall be responsible for any Authorised User's breach of these Terms;
7.1.5
obtain and shall maintain all necessary licences, consents, and permissions necessary
for Keepl, its contractors and agents to perform their obligations under these Terms,
including without limitation the Services;
7.1.6
ensure that its network and systems comply with the relevant specifications provided
by Keepl from time to time; and
7.1.7
be, to the extent permitted by law and except as otherwise expressly provided in these
Terms, solely responsible for procuring, maintaining and securing its network
connections and telecommunications links from its systems to Keepl’s data centres,
and all problems, conditions, delays, delivery failures and all other loss or damage
arising from or relating to the Customer's network connections or telecommunications
links or caused by the internet.
7.2
The Customer shall own all right, title and interest in and to all of the Customer Data that is not
personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy
and quality of all such Customer Data. For the avoidance of doubt, Keepl shall have the right
to use the Customer Data for its own general business purposes, including but not limited to
collating and aggregating the Customer Data for the purpose of publishing general information
about the Services.
8.
Charges and payment
8.1
The Customer shall pay the Subscription Fees to Keepl for the User Subscriptions in
accordance with this clause 8 and in the amounts set out on Keepl’s Website.
8.2
The Customer shall on the Subscription Start Date provide to Keepl valid, up-to-date and
complete credit card details or approved purchase order information acceptable to Keepl and
any other relevant valid, up-to-date and complete contact and billing details and:
8.2.1
where the Customer provides its credit card details to Keepl, the Customer hereby
authorises Keepl to bill such credit card:
8.2.1.1
on the Subscription Start Date for the Subscription Fees payable in respect
of the Subscription Term; and
8.2.1.2
subject to clause 8.1, on each anniversary of the Subscription Start Date
for the Subscription Fees payable in respect of the next Renewal Period;
or
8.2.2
where the Customer provides its approved purchase order information to Keepl in
accordance with clause 2, Keepl shall invoice the Customer:
8.2.2.1
on the Subscription Start Date, Subscription Fees payable in respect of the
Subscription Term; and
8.2.2.2
subject to clause 8.1 at least 30 days prior to each anniversary of the
Subscription Start Date for the Subscription Fees payable in respect of the
next Renewal Period.
8.3
The Customer shall pay each invoice within 30 days of the date of invoice.
8.4
If Keepl has not received payment within 30 days after the due date, and without prejudice to
any other rights and remedies of Keepl:
8.4.1
Keepl may, on no less than 5 Business Days' notice to the Customer and without
liability to the Customer, disable the Customer's password, account and access to all
or part of the Services and Keepl shall be under no obligation to provide any or all of
the Services while the invoice(s) concerned remain unpaid; and
8.4.2
interest shall accrue on a daily basis on such due amounts at an annual rate equal to
3% over the then current Bank of England base lending rate from time to time,
commencing on the due date and continuing until fully paid, whether before or after
judgment.
8.5
All amounts and fees stated or referred to in these Terms:
8.5.1
shall be payable in pounds sterling;
8.5.2
are, subject to clause 12.3.2, non-cancellable and non-refundable;
8.5.3
are exclusive of value added tax, which shall be added to Keepl's invoice(s) at the
appropriate rate.
8.6
Keepl reserves the right to increase the Subscription Fees for any Renewal Period provided
that it notifies the Customer of the same not less than 3 calendar months before expiry of the
Subscription Term (or a Renewal Period, where applicable).
9.
Proprietary rights
9.1
The Customer acknowledges and agrees that Keepl and/or its licensors own all intellectual
property rights in the Services. Except as expressly stated herein, these Terms do not grant
the Customer any rights to, under or in, any patents, copyright, database right, trade secrets,
trade names, trade marks (whether registered or unregistered), or any other rights or licences
in respect of the Services.
9.2
Keepl confirms that it has all the rights in relation to the Services that are necessary to grant all
the rights it purports to grant under, and in accordance with, these Terms.
9.3
Keepl shall defend the Customer against any claim that the Customer’s use of the Software in
accordance with these Terms infringes any Intellectual Property Rights of a third party (Claim)
and shall indemnify the Customer for any amounts awarded against the Customer in judgment
or settlement of such Claim. For the avoidance of doubt, this clause 9.3 shall not apply where
the Claim in question is attributable to possession or use of the Software (or any part thereof)
by the Customer other than in accordance with the Terms, use of the Software in combination
with any hardware or software not supplied or specified by Keepl if the infringement would have
been avoided by the use of the Software not so combined, or use of a non-current release of
the Software.
9.4
If any third party makes a Claim, or notifies an intention to make a Claim against the Customer,
Keepl’s obligations under clause 9.3 are conditional on the Customer:
9.4.1
as soon as reasonably practicable, giving written notice of the Claim to Keepl,
specifying the nature of the Claim in reasonable detail;
9.4.2
not making any admission of liability, agreement or compromise in relation to the Claim
without the prior written consent of Keepl (such consent not to be unreasonably
conditioned, withheld or delayed);
9.4.3
giving Keepl and its professional advisers access at reasonable times (on reasonable
prior notice) to its premises and its officers, directors, employees, agents,
representatives or advisers, and to any relevant assets, accounts, documents and
records within the power or control of the Customer, so as to enable Keepl and its
professional advisers to examine them and to take copies (at Keepl’s expense) for the
purpose of assessing the Claim; and
9.4.4
subject to Keepl providing security to the Customer to the Customer's reasonable
satisfaction against any claim, liability, costs, expenses, damages or losses which may
be incurred, taking such action as Keepl may reasonably request to avoid, dispute,
compromise or defend the Claim.
9.5
If any Claim is made, or in Keepl’s reasonable opinion is likely to be made, against the
Customer, Keepl may at its sole option and expense:
9.5.1
procure for the Customer the right to continue to use the Software (or any part thereof)
in accordance with these Terms;
9.5.2
modify the Software so that it ceases to be infringing;
9.5.3
replace the Software with non-infringing software; or
9.5.4
terminate the Contract immediately by notice in writing to the Customer and refund any
of the Subscription Fees paid by the Customer as at the date of termination (less a
reasonable sum in respect of the Customer's use of the Software to the date of
termination) on return of the Software and all copies thereof,
provided that if Keepl modifies or replaces the Software, the modified or replacement Software
must comply with the warranties contained in clause 12 and the Customer shall have the same
rights in respect thereof as it would have had under those clauses had the references to the
date of this Contract been references to the date on which such modification or replacement
was made.
9.6
This Clause 9 constitutes the Customer's exclusive remedy and Keepl’s only liability in respect
of Claims and, for the avoidance of doubt, is subject to Clause 12.
10.
Confidentiality
10.1
Each party undertakes that it shall not at any time disclose to any person any confidential
information concerning the business, assets, affairs, customers, clients or suppliers of the other
party or of any member of the group of companies to which the other belongs, except as
permitted by clause 10.2
10.2
Each party may disclose the other party’s confidential information to its employees, officers,
representatives, contractors or subcontractors or advisers who need to know such information
for the purposes of exercising the party’s rights or carrying out its obligations under or in
connection with these Terms.
11.
Anti-bribery and anti-corruption
11.1
Keepl shall during the term of the Contract:
11.1.1 comply with all applicable laws, statutes, regulations and codes relating to anti-bribery
and anti-corruption including but not limited to the Bribery Act 2010
11.1.2 notify the Customer in writing if it becomes aware of any breach of clause 11.1.1 or has
reason to believe that it has received a request or demand for any undue financial or
other advantage in connection with the performance of the Contract.
12.
Limitation of liability
12.1
Except as expressly and specifically provided in these Terms:
12.1.1 the Customer assumes sole responsibility for results obtained from the use of the
Services by the Customer, and for conclusions drawn from such use. Keepl shall have
no liability for any damage caused by errors or omissions in any Customer Data,
information, instructions or scripts provided to Keepl by the Customer in connection
with the Services, or any actions taken by Keepl at the Customer's direction;
12.1.2 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 these Terms;
12.1.3 the Customer accepts that any agreement between the Customer and a third party
resulting from the use of the Services is between the Customer and the relevant third
party and Keepl has no liability whatsoever and howsoever arising in relation to any
agreement entered into by the Customer as a result its use of the Services; and
12.1.4 the Services are provided to the Customer on an "as is" basis.
12.2
Nothing in these Terms excludes the liability of Keepl:
12.2.1 for death or personal injury caused by Keepl's negligence; or
12.2.2 for fraud or fraudulent misrepresentation.
12.3
Subject to clause 12.1 and clause 12.2;
12.3.1 Keepl shall have no liability for any:
12.3.1.1
loss of profits,
12.3.1.2
loss of business,
12.3.1.3
wasted expenditure,
12.3.1.4
depletion of goodwill and/or similar losses,
12.3.1.5
loss or corruption of data or information, or
12.3.1.6
any special, indirect or consequential loss, costs, damages, charges or
expenses; and
12.3.2 Keepl's total aggregate liability to the Customer in respect of all breaches of duty
(including under the indemnity at clause 9.3) occurring within any contract year shall
not exceed the cap (as detailed below). If breaches committed in more than one
contract year give rise to a single claim or a series of connected claims, Keepl’s total
liability for those claims shall not exceed the single highest annual cap for those
contract years.
12.3.3 In clause 12.3.2:
12.3.3.1
The cap is the total Subscription Fees paid in the contract year in which the
breaches occurred.
12.3.3.2
A contract year means a 12 month period commencing on the Subscription
Start Date or any anniversary of it.
12.4
References to liability in this clause 12 include every kind of liability arising under or in
connection with these Terms including but not limited to liability in contract, tort (including
negligence), misrepresentation, restitution or otherwise.
12.5
Nothing in these Terms excludes the liability of the Customer for any breach, infringement or
misappropriation of Keepl’s Intellectual Property Rights.
13.
Term and Termination
13.1
This Contract shall, unless otherwise terminated as provided in this clause commence on the
Subscription Start Date and shall continue for the Subscription Term and, thereafter, this
Contract shall be automatically renewed for successive periods of 12 months (each a Renewal
Period), unless:
13.1.1 either party notifies the other party of termination, in writing before the end of the
Subscription Term or any Renewal Period, in which case this Contract shall terminate
upon the expiry of the applicable Subscription Term or Renewal Period; or
13.1.2 otherwise terminated in accordance with the provisions of these Terms;
and the Subscription Term together with any subsequent Renewal Periods shall constitute the
Subscription Term.
13.2
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:
13.2.1 the other party fails to pay any amount due under this Contract on the due date for
payment and remains in default not less than 30 days after being notified in writing to
make such payment;
13.2.2 the other party commits a material breach of any other term of this Contract and (if such
breach is remediable) fails to remedy that breach within a period of 30 days after being
notified in writing to do so;
13.2.3 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 (IA 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 IA 1986;
13.2.4 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 its creditors other than for the sole purpose of a scheme for a
solvent amalgamation of that other party with one or more other companies or the
solvent reconstruction of that other party;
13.2.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the
Insolvency Act 1986;
13.2.6 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 other than for the sole purpose of a
scheme for a solvent amalgamation of that other party with one or more other
companies or the solvent reconstruction of that other party;
13.2.7 an application is made to court, or an order is made, for the appointment of an
administrator, or if a notice of intention to appoint an administrator is given or if an
administrator is appointed, over the other party (being a company, partnership or
limited liability partnership);
13.2.8 the holder of a qualifying floating charge over the assets of that other party (being a
company or limited liability partnership) has become entitled to appoint or has
appointed an administrative receiver;
13.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a
receiver is appointed over the assets of the other party;
13.2.10 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;
13.2.11 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 13.2.3 to clause 13.2.11 (inclusive);
13.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all
or a substantial part of its business;
13.2.13 the other party's financial position deteriorates so far as to reasonably justify the opinion
that its ability to give effect to these Terms is in jeopardy; or
13.2.14 there is a change of control of the other party (within the meaning of section 1124 of
the Corporation Tax Act 2010).
13.3
On termination of this Contract for any reason:
13.3.1 all licences granted under these Terms shall immediately terminate and the Customer
shall immediately cease all use of the Services;
13.3.2 each party shall return and make no further use of any equipment, property and other
items (and all copies of them) belonging to the other party;
13.3.3 Keepl will destroy or otherwise dispose of any Customer Data in its possession 30 days
following the effective date of termination of this Contract unless, within that 30-day
timeframe, the Customer reactivates its Subscription;
13.3.4 provided that the Customer has, at that time, paid all fees and charges outstanding at
and resulting from termination (whether or not due at the date of termination), the
Customer will have 30 days following the effective date of termination of this Contract
to download the most recent back-up of the Customer Data, at which point thereafter,
the Customer Data will be deleted;
13.3.5 the Customer shall pay all reasonable expenses incurred by Keepl in returning or
disposing of Customer Data; and
13.3.6 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.
14.
Force majeure
Neither party shall be in breach of this Contract or otherwise liable for any failure or delay in the
performance of its obligations if such delay or failure results from events, circumstances or causes
beyond its reasonable control. The time for performance of such obligations shall be extended
accordingly. If the period of delay or non-performance continues for 90 days, the party not affected may
terminate the Contract by giving 30 days’ written notice to the affected party.
15.
Variation
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their
authorised representatives).
16.
Waiver
16.1
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a
waiver of any subsequent right or remedy.
16.2
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not
waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that
or any other right or remedy.
17.
Rights and remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are
in addition to, and not exclusive of, any rights or remedies provided by law.
18.
Severance
18.1
If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable,
it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of
these Terms.
18.2
If any provision or part-provision of these Terms is deemed deleted under clause 18.1 the
parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent
possible, achieves the intended commercial result of the original provision.
19.
Entire agreement
19.1
These Terms constitute the entire agreement between the parties and supersedes and
extinguishes all previous and contemporaneous agreements, promises, assurances and
understandings between them, whether written or oral, relating to its subject matter.
19.2
Each party acknowledges that in entering into this Contract 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 these Terms.
19.3
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or
negligent misstatement based on any statement in these Terms.
19.4
Nothing in this clause shall limit or exclude any liability for fraud.
20.
Assignment
20.1
The Customer shall not, without the prior written consent of Keepl, assign, transfer, mortgage,
charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its
rights and obligations under this Contract.
20.2
Keepl may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or
deal in any other manner with any or all of its rights and obligations under these Terms provided
that it gives prior written notice of such dealing to the Customer.
21.
No partnership or agency
Nothing in these Terms 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).
22.
Third party rights
22.1
Unless it expressly states otherwise, these Terms do not give rise to any rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
22.2
The rights of the parties to rescind or vary this Contract are not subject to the consent of any
other person.
23.
Counterparts
23.1
This Contract may be executed in any number of counterparts, each of which shall constitute a
duplicate original, but all the counterparts shall together constitute the one contract.
23.2
Transmission of an executed counterpart of this Contract (but for the avoidance of doubt not
just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as the
transmission of an executed "wet-ink" counterpart of this Contract. If either method of
transmission is adopted, without prejudice to the validity of the agreement thus made, each
party shall on request provide the other with the "wet ink" hard copy original of their counterpart.
23.3
No counterpart shall be effective until each party has provided to the other at least one executed
counterpart.
24.
Notices
24.1
Any notice given to a party under or in connection with this Contract shall be in writing and shall
be:
24.1.1 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 its principal place of business (in any
other case); or
24.1.2 sent by email to the address specified by each party for such purposes.
24.2
Any notice shall be deemed to have been received:
24.2.1 if delivered by hand, at the time the notice is left at the proper address;
24.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00
am on the second Business Day after posting; or
24.2.3 if sent by email, at the time of transmission, or, if this time falls outside Business Hours
in the place of receipt, when Business Hours resume.
24.3
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.
25.
Governing law
This Contract 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 interpreted in
accordance with the law of England and Wales.
26.
Jurisdiction
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 Contract or its subject matter or
formation (including non-contractual disputes or claims).