(1) DIGITAL 1 INVESTMENTS LIMITED, TRADING as Digital 1 incorporated and registered in England and Wales with company number 10811049 whose registered office is at The Shard, Level 24, London Bridge Street, London, United Kingdom, SE1 9SG (“Supplier”).
(A) The Supplier is the licensor of certain software applications and platforms, geared towards SMEs, which the Supplier makes available to subscribers via the internet on a pay-per-use basis for the purpose of providing a secure and discrete virtual desktop including email and document storage, as well as convenient access to other professional services and tools. In addition, the Customer shall be able to contract directly with Supplier’s partner, Zypha Limited, in respect of other services to be used in conjunction with the Service.
(B) The Customer wishes to use the Service in its operations.
(C) The Supplier has agreed to provide, and the Customer has agreed to take and pay for the Service subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Additional Service: any of the additional services listed in Part 2 of Schedule 1 and any other services that the Customer and the Supplier may from time to time agree shall be supplied to the Customer by the Supplier under the terms of this agreement.
Administration Fee: the administration fee payable if the Supplier allows a Customer requested change to the Service as referred to in Part 2 of Schedule 1.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Service and the Documentation.
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 11.6 or clause 11.7.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Service or facilitating the Customer’s use of the Service.
Documentation: the documents provided by the Supplier for the Service, in either printed text or machine-readable form, including the technical documentation and program specification.
Effective Date: the date of this agreement.
Error: means the failure of the Service to perform materially in accordance with the Documentation.
Initial Subscription Term: the initial term of this agreement as set out in Schedule 2.
Normal Business Hours: 09.00 to 17.30 UK time, each Business Day.
Professional Tools: means the services and / or tools which can potentially be accessed as part of the Service, currently comprising of: Desktop, Mobile telecommunication, Publishing, Legal, Financial, CRM, Telemarketing, IP tracking, Social media, Funding, Sales funnels and Accounts.
Renewal Period: the period described in clause 14.1.
Service: the subscription service giving access to the Professional Tools provided by the Supplier to the Customer under this agreement via [INSERT WEB ADDRESS] (or any other website notified to the Customer by the Supplier from time to time), comprising of the Software set out in Schedule 1 and as more particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the Services and as stated in Schedule 1.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the provision of the Service, as set out in Schedule 1.
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy: means the Supplier’s policy for providing support in relation to the Services as detailed in Schedule 2.
User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
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.
Zypha Service: means any service for which the Customer contracts directly for with Supplier’s partner, Zypha Limited, but which shall be charged for by Supplier pursuant to the payment terms of this Agreement.
1.2 The headings in this agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this agreement.
1.3 Unless the context otherwise requires:
(a) references to the Supplier and the Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted;
(c) references to one gender includes a reference to the other genders; and
(d) references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them.
1.5 Words in the singular include the plural and those in the plural include the singular.
1.6 A person includes a natural person, corporate, statutory body or unincorporated body (whether or not having separate legal personality).
2. SUBSCRIPTION TO SERVICE
2.1 The Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal operations as set out in Schedule 1.
2.2 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) 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 Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.3 In relation to the Authorised Users, the Customer warrants that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions purchased at any time;
(b) 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 and/or Documentation;
(c) each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than [MONTHLY] and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within  Business Days of the Supplier’s written request at any time or times;
(e) it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’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;
(f) if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1 (subject to clause 9.6) within  Business Days of the date of the relevant audit.
2.4 The Customer shall not (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):
(a) 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;
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(c) access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation;
(d) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except the Authorised Users.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service 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 Customer only and not to any other affiliate, unless otherwise agreed in this agreement.
3. ADDITIONAL AUTHORISED USERS
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in Schedule 1 and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request [(such approval not to be unreasonably withheld)]. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within [NUMBER] days of its approval of the Customer’s request.
3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within [30 ]days of the date of the Supplier’s invoice, pay to the Supplier the Subscription Fees for such additional User Subscriptions as set out in Schedule 1 (subject to clause 9.6) and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable) and the Customer elects to pay the Subscription Fees annually, such Subscription Fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of [22.00 to 02.00 UK time]; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least [ Normal Business Hours’] notice in advance.
4.3 The Supplier will, as part of the Services, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase Additional Services separately at the Supplier’s then current rates.
5. CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Supplier shall use reasonable commercial procedures for archiving Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
5.3 The Supplier shall, in providing the Service, use reasonable commercial endeavours to ensure the privacy and security of the Customer Data.
5.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6. THIRD PARTY PROVIDERS
7. SUPPLIER’S OBLIGATIONS
7.1 The Supplier warrants that the Service will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The warranty at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to the Supplier’s instructions, or modification or alteration of the Service by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the warranty set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Service will be uninterrupted or error-free; or that the Service, Documentation and/or the information obtained by the Customer through the Service will meet the Customer’s requirements; and
(b) 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 Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 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.
7.4 The Support Policy at Schedule 2 states the Supplier’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Service, or its non-performance and non-availability.
7.5 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.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Service, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Service and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) 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 Service;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9. CHARGES AND PAYMENT
9.1 In consideration of the Service (excluding for this purpose any Additional Service), the Customer shall pay the Subscription Fees set out in Schedule 1. These Fees shall be paid [monthly / annually] in advance by the Customer to the Supplier within [30 days] of the date of the Supplier’s invoice. However, the first [monthly / annual] Subscription Fee shall be payable on the Effective Date.
9.2 Charges for any Additional Service to the Customer shall be agreed in writing before performance or supply by the Supplier, and shall be charged and invoiced to the Customer by the Supplier (and paid by the Customer) following acceptance by the Supplier of the Customer’s written order for such Additional Service. The Customer shall pay all costs (at the Supplier’s then prevailing rates) and expenses incurred by the Supplier for work carried out by the Supplier in connection with Additional Service.
9.3 If the Supplier has not received payment within [30 days] after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s access to all or part of the Service and the Supplier shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
(b) If the Customer fails to pay any amount payable by it under this agreement, the Supplier may charge the Customer interest on the overdue amount, payable by the Customer immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% a year above the base rate for the time being of Lloyds Bank Plc. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2013.
9.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in [pounds sterling];
(b) are, subject to clause 13.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Service, the Customer exceeds 5Gb disk storage space per month, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out in Schedule 1.
9.6 The Supplier shall be entitled to increase the Subscription Fees, Additional Service fees and the excess storage fees payable pursuant to clause 9.5 annually on the anniversary of the Effective Date upon at least  days’ prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly
9.7 The Customer may not withhold payment of any sum by reason of any set-off of any claim or dispute with the Supplier whether relating to the quality or performance of the Service or otherwise.
9.8 Provision of the Zypha Services will be subject to a direct contract between Zypha imited and the Customer, save for payment for the Zypha Services shall be paid by the Customer to the Supplier as set out in Schedule 1 to this Agreement.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Service and the Documentation. Except as expressly stated herein, this agreement does 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 or the Documentation.
10.2 The Supplier confirms that it has all the rights in relation to the Service 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.
11.1 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:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6 The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute the Supplier’s Confidential Information.
11.7 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.8 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.
11.9 The above provisions of this clause 11 shall survive termination of this agreement, however arising.
12.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Service or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
12.2 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on  Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Service or Documentation by anyone other than the Supplier; or
(b) the Customer’s use of the Service or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Service or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.4 The foregoing and clause 13.3(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Service and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Service, or any actions taken by the Supplier at the Customer’s direction;
(b) 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
(c) the Service and the Documentation are provided to the Customer on an “as is” basis.
13.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any (i) loss of profits, (ii) loss of business, (iii) depletion of goodwill and/or similar losses, (iv) loss or corruption of data or information, (v) pure economic loss, or (vi) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 12.1), 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 the greater of £ 100 OR the total Subscription Fees paid during the 3 months immediately preceding the date on which the claim arose.
13.4 For the avoidance of doubt, the Supplier shall have no liability in respect of the Zypha Services, which are subject to separate terms and conditions between the Customer and Zypha Limited.
14. TERM AND TERMINATION
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 3 months before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than  days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of  days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement 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 agreement;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) 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;
(j) 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  days;
(k) 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 14.2(d) to clause 14.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Service and/or the Documentation;
(b) 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;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than  days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within  days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. FORCE MAJEURE
Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19. RIGHTS AND REMEDIES
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.
20.1 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.
20.2 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.
21. ENTIRE AGREEMENT
21.1 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.
21.2 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.
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22.2 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.
23. NO PARTNERSHIP OR AGENCY
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).
24. THIRD PARTY RIGHTS
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.
25.1 Any notice required to be given under this agreement shall be in writing (which shall include by e-mail) and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice as set out below:
Supplier: [Program Manager] [LEVEL 24, 32 BRIDGE STREET, LONDON SE1 9SL ] Email [ ADMIN@RSHI.CO ]
Customer: [ADDRESS as per application] Email [As per Application];
or as otherwise specified by the relevant party by notice in writing to each other party.
25.2 Any notice shall be deemed to have been duly received:
(a) if delivered personally, when left at the address and for the contact referred to in this clause;
(b) if sent by e-mail, on the day the e-mail is sent if sent before 4.55 p.m. or if sent after 4.55 p.m. the next Business Day; or
(c) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
(d) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
25.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
26. GOVERNING LAW
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.
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 Effective Date.