Supplier offers access to and use of its Services on the terms and conditions set out below.

Agreed terms

1. Interpretation

1.1 The definitions and rules of interpretation in this clause and in the Customer Order apply in these terms.

"agreement" means the agreement between the Supplier and the Customer comprising these terms and the Customer Order;

"Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, in accordance with User Subscriptions;

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

"Change of Control" means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and "controls", "controlled" and the expression "change of control" shall be interpreted accordingly;

"Company" means a company which makes its Company Data available to the Customer on the Platform and, for billing purposes only, completes at least one data synchronisation in a given month.

"Company Data" means data uploaded with the Company’s permission to the Platform containing information relating to the Company’s business.

"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.1;

"Customer Data" means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services;

"Customer Order" means the order on the Supplier's website which is accepted by the Customer;

"Data Protection Law" means the Data Protection Act 2018 and Regulation (EU) 2016/679 as it forms part of the law of England and Wales, as amended and replaced from time to time; and "Controller", "Data Subject", "Personal Data", "Process" and "Processor" shall have the meanings given to them in that legislation; 

"Documentation" means the documentation made available to the Customer by the Supplier online via www.recorder.tech or such other web address notified by the Supplier to the Customer from time to time;

"Effective Date" means the date on which the Supplier issues its confirmation of the Customer Order;

"Initial Subscription Term" means 12 months from the Effective Date;

"Normal Business Hours" means 9:00 am to 5:00 pm local UK time, each Business Day;

"Platform" means the digital platform managed by the Supplier for the provision of the Services.

"Renewal Period" means the period described in clause 12.1;

"Services" means the subscription services provided by the Supplier to the Customer under this agreement using the Platform via www.recorder.tech or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation;

"Software" means the online software applications provided by the Supplier as part of the Services;

"Subscription Fees" means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in broker.recorder.tech/billing;

"Subscription Term" has the meaning given in clause 12.1  (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 made available at www.recorder.tech or such other website address as may be notified to the Customer from time to time;

"User Subscriptions" means the user subscriptions purchased by the Customer from time to time pursuant to clause 7.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement; and

"Virus" means 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 these terms.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

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" excludes fax but includes email.

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. User Subscriptions

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 7.1,  and the other terms and conditions of this agreement, the Supplier 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 and the Documentation during the Subscription Term solely for the Customer's internal business operations.

2.2 Subject to the terms of this agreement, Supplier grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to (a) use the Platform solely for the purpose of accessing the Company Data; and (b) use the Platform to access the Company Data in the format made available by Supplier on the Platform from time to time solely for the internal purposes of (i) assessing whether to make the Customer's products available to the particular Company; and (ii) managing the provisions of the Customer's products to the particular Company.

2.3 The Customer shall not allow the Platform or the Services to be accessed or used by anyone other than Authorised Users and procure that each Authorised User keep secure their login credentials used to access the Platform and not share them with any other person.

2.4 The Customer undertakes 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 it has purchased from time to time;

(b) it will not allow 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 their use of the Services and Documentation and that each Authorised User shall keep their password confidential;

(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;

(e) procure that the Company (i) authorises the Company Data to be uploaded to the Platform and used by Customer and Supplier as envisaged under this agreement; (ii) acknowledges and undertakes that any Company Data uploaded to the Platform (A)

(f) shall be true and accurate, to the best of its knowledge; and (B)is not defamatory, discriminatory, offensive, obscene, indecent or otherwise unlawful or objectionable;

(g) co-operate with Supplier in all matters relating to the Platform and the Services;

(h) ensure that any data on the Platform provided by or on behalf of the Customer is true and accurate to the best of its knowledge and its placement on the Platform and use by Supplier in accordance with this agreement will not put Supplier in breach of any applicable laws;

(i) it shall permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per six months, 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;

(j) if any of the audits referred to in clause 2.4(i) 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

(k) if any of the audits referred to in clause 2.4(i) 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 Subscription Fees within 10 Business Days of the date of the relevant audit.

2.5 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 relating to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

2.6 The Customer shall not:

(a) 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 (i) 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 (ii) 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

(b) access all or any part of the Services, Platform and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c) use the Services and/or Documentation to provide services to third parties; or

(d) subject to clause 20.1, 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 except the Authorised Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation; or

(f) introduce or permit the introduction of, any Virus into the Services, the Platform or the Supplier's network and information systems. 

2.7 The Customer 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.

2.8 The Customer acknowledges that the Services and Platform may be subject to usage limits, including but not limited to, data storage capacity, bandwidth usage, and transaction volumes, in order to prevent any usage of the Services or Platform that negatively impacts the performance or availability of services for other users, and that exceeding these limits may result in impaired service quality, additional charges or suspension of service. 

2.9 The rights provided under this agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3. Services

3.1 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.

3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.

3.3 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.  

4. Data protection

4.1 The parties shall comply with the terms of Schedule 1 in respect of data protection.

5. Supplier's obligations

5.1 The Supplier shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.

5.2 The Supplier's obligations at clause 5.1 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 terms of clause 5.1, Supplier 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 5.1.  

5.3 The Supplier does not warrant that (i) the Customer's use of the Services will be uninterrupted or error-free; (ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or (iii) the Software or the Services will be free from Viruses.

5.4 The Supplier 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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.5 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.

5.6 The Supplier shall follow its archiving procedures for Customer Data as set out in its back-up policy available from the Supplier on request, as such document may be amended by the Supplier 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 the Supplier 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 in accordance with the archiving procedure described in its back-up policy.  

6. Customer's obligations

6.1 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 Services, including but not limited to Customer Data, security access information and configuration services;

(b) without affecting its other obligations under this agreement, 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 Services 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 Services;

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

(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing 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.

6.2 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.

7. Charges and Payment

7.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 7.

7.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a) its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill that credit card:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii)subject to clause 12.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii) subject to clause 12.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 30 days after the date of such invoice.

7.3 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, 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 the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3 % over the then current base lending rate of [the Supplier's bankers in the UK] from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

(c) All amounts and fees stated or referred to in this agreement shall be payable in pounds sterling; are, subject to clause 11.3(b), non-cancellable and non-refundable; and are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

7.4 The Supplier shall be entitled to increase the Subscription Fees  at the start of each Renewal Period upon 60 days' prior notice to the Customer.

8. Proprietary rights

8.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services 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.

8.2 The Supplier confirms that it has all the rights in relation to the Services 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 "Confidential Information" means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the Effective Date in connection with its business, services, technology or operations, including but not limited to:

(a) the existence and terms of any agreement entered into in connection with this agreement;

(b) any information that would be regarded as confidential by a reasonable business person relating to the business, assets, affairs, customers, clients, suppliers, of the disclosing party; and the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;

(c) any information developed by the parties in the course of carrying out this agreement and the parties agree that (i)  details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and Customer Data shall constitute Customer Confidential Information.

"Representatives" means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers. 

9.2 The provisions of this clause shall not apply to any Confidential Information that: 

(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

(d) the parties agree in writing is not confidential or may be disclosed; 

9.3 Each party shall keep the other party's Confidential Information secret and confidential and shall not:

(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with these terms ("Agreed Purpose"); or

(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 9.

9.4 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Agreed Purpose, provided that (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.

9.5 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 (including, without limitation, any relevant securities exchange 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.

9.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.

9.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this clause are granted to the other party, or to be implied from this agreement.

9.8 On termination or expiry of this agreement, each party shall:

(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;

(b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 12 (Term and Termination).

9.9 Neither party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other party (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.

9.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

9.11 The provisions of this clause 9 shall survive for a period of five years from termination or expiry of this agreement. 

10. Indemnity

10.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, Platform and/or Documentation, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

(c) the Customer is given sole authority to defend or settle the claim.

10.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services, Platform or Documentation in accordance with these terms infringes any 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 does not make any admission, or otherwise attempt to compromise or settle the claim and 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.

10.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer 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 these terms on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

10.4 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 Services or Documentation by anyone other than the Supplier; or

(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or

(d) the Customer's breach of these terms.

10.5 The foregoing  and clause 11.3(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.

11. Limitation of Liability

11.1 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services 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 Customer Data, information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, 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 Services and the Documentation are provided to the Customer on an "as is" basis.

11.2 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.

11.3 Subject to clause 11.1 and clause 11.2:

(a) the Supplier shall have no liability for any:

(i) loss of profits, 

(ii) loss of business, 

(iii) wasted expenditure, 

(iv) depletion of goodwill and/or similar losses, 

(v) loss or corruption of data or information, or

(vi) any special, indirect or consequential loss, costs, damages, charges or expenses; and

(b) the Supplier's total aggregate liability to the Customer (including in respect of the indemnity at clause 10.2), in respect of all breaches of these terms or other claims of any type occurring within any contract year shall not exceed the cap. 

(c) In clause 11.3(b):

(i) The cap is the greater of £10,000 and one hundred per cent (100%) of the total Subscription Fees paid in the contract year in which the breaches occurred.;

(ii) A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.

11.4 References to liability in this clause 11 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

11.5 Nothing in this agreement excludes or limits the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.

12. Term and Termination

12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, 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 60 days 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".

12.2 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 30 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 and (if such breach is remediable) fails to remedy that breach within a period of  30 days after being notified to do so;

(c) 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 or (being a partnership) has any partner to whom any of the foregoing apply;

(d) 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;

(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(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 (being a company, partnership or limited liability partnership);

(h) 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;

(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 14 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 12.2(c) to clause 13.2(j) (inclusive);

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

12.3 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 Services, Platform 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 ten 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 30 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.

13. General

13.1 Neither party shall be in breach of this agreement 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 13 weeks, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.

13.2 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.

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

13.4 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. 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.

13.5 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.

13.6 If any provision or part-provision of this agreement 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 this agreement.

13.7 If any provision or part-provision of this agreement is deemed deleted under clause 13.6 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.

13.8 This agreement constitutes 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.

13.9 Each party acknowledges that in entering into these terms it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.

13.10 Each party agrees that it shall have no claim for innocent or negligent misrepresentation  based on any statement in these terms.

13.11 Nothing in this agreement shall limit or exclude any liability for fraud.

13.12 The Customer shall not, without the prior written consent of the Supplier, 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 agreement.

13.13 The Supplier 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 this agreement.

13.14 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).

13.15 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

13.16 This agreement 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 agreement.

13.17 Acceptance of these terms shall occur on receipt by the Supplier of an electronic notice which appears to be made on behalf of the Customer. Unless otherwise expressly notified by the Customer before such notice, the Supplier shall be entitled to assume that such notice is made on behalf of the Customer. 

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

(a) 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 

(b) sent by email to the following addresses (or an address substituted in writing by the party to be served): 

Supplier: info@recorder.tech.

Customer: the email address in the Customer Order.

13.19 Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or  next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c) 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.

13.20 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. 

14. Governing Law and Jurisdiction

14.1 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 interpreted in accordance with the law of England and Wales.

14.2 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).

Schedule 1
Data Protection

By using the Services and/or the Platform, the Companies will place Company Data on to the Platform. That information will be accessible to the Customer. The Customer acknowledges that in placing Company Data on to the Platform that information or that information in conjunction with other information regarding individuals may constitute Personal Data. Where Supplier is a Controller, Supplier may use Personal Data in the manner set out in Supplier's privacy notice and as further set out in this agreement. 

The Customer shall enter into direct contractual relationships with each Company to obtain permission to access and use of the Company Data of that Company on the Platform by means of the Services.  The Customer agrees to procure from the Company (where required by law) that Supplier shall have the right to store, use, reformat and distribute and otherwise Process such Company Data, any Personal Data through the Services as required under this agreement.

The Customer shall be responsible for procuring that the Company provides the Company Data and/or any Personal Data, or procuring that such instructions as are appropriate are given to associated third parties to deliver Company Data and/or any Personal Data to, or arrange for the collection of, such Company Data and/or any Personal Data by Supplier in a description and format that is suitable for the Platform and the provision of the Services.

Where the Customer enters into transactions with Company(s) and/or third parties, the Customer agrees and acknowledges that the Customer is solely responsible for the fulfilment of any such transactions and/or the associated Processing of all Company Data and/or Personal Data by Supplier in such transactions.

The Customer warrants that, where required by law or contract with any third party, the Customer has separately obtained all necessary Company and other consents in writing relating to the Company Data and any Personal Data being stored and/or Processed by Supplier under this agreement, including but not limited to the transfer of Company Data and/or Personal Data to the Customer outside of the EEA. Customer will provide written copies of Company consent to Supplier upon Supplier's reasonable request.

Supplier as a Processor

Customer (the Controller) appoints Supplier as a Processor to Process the Personal Data described in this agreement (specifically, limited business contact details and business financial and transactional information that is contained in the Company Data) (the "Data") for the purposes described in this agreement (or as otherwise agreed in writing by the parties), which shall include instructing Supplier to aggregate and anonymise the Data as required to produce non-Personal Data that Supplier can use to provide support to the Customer and for generic product development purposes (the "Permitted Purpose").  Each party shall comply with the obligations that apply to it under Data Protection Law. If Supplier becomes aware that Processing for the Permitted Purpose infringes Data Protection Law, it shall promptly inform the Customer.

Customer shall not disclose (and shall not permit any Data Subject to disclose) any special categories of Personal Data to Supplier for Processing.

Supplier shall not transfer the Data outside of the European Economic Area ("EEA") unless it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Law.  Where so required to ensure that the transfer occurs in compliance with Data Protection Law, the parties agree that this agreement shall incorporate the terms of the EU model clauses.

Supplier shall ensure that any person it authorises to Process the Data (an "Authorised Person") shall protect the Data in accordance with Supplier's confidentiality obligations under this agreement.

Supplier shall implement technical and organisational measures to protect the Data (a) from accidental or unlawful destruction, and (b) loss, alteration, unauthorised disclosure of, or access to the Data (a "Security Incident").

Customer consents to Supplier engaging third party sub-processors to Process the Data for the Permitted Purpose provided that: (a) Supplier maintains an up-to-date list of its sub-processors here - Microsoft, which it shall update with details of any change in sub-processors at least 10 days' prior to any such change; (b) Supplier imposes data protection terms on any sub-processor it appoints that require it to protect the Data to the standard required by Data Protection Law; and (c) Supplier remains liable for any breach of this clause that is caused by an act, error or omission of its sub-processor.  Customer may object to Supplier's appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection.  In such event, Supplier will either not appoint or replace the sub-processor or, if this is not possible, Supplier may suspend or terminate this agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).

Supplier shall provide reasonable and timely assistance to Customer (at Customer's expense) to enable Customer to respond to: (a) any request from a Data Subject to exercise any of its rights under Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (b) any other correspondence, enquiry or complaint received from a Data Subject, regulator or other third party in connection with the Processing of the Data.   If any such request, correspondence, enquiry or complaint is made directly to Supplier, Supplier shall promptly inform Customer providing full details of the same.

Supplier shall provide reasonable cooperation to Customer (at Customer's expense) in connection with any data protection impact assessment that may be required under Data Protection Law.

If it becomes aware of a confirmed Security Incident, Supplier shall inform Customer without undue delay and shall provide reasonable information and cooperation to Customer so that Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Data Protection Law.  Supplier shall further take any such reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep Customer informed of all material developments in connection with the Security Incident.

Upon termination or expiry of this agreement, Supplier shall enable the Customer to download/export all Data in its possession or control and/or delete the Data.  This requirement shall not apply to the extent that Supplier is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, in which event Supplier shall securely isolate and protect from any further processing except to the extent required by such law until deletion is possible.

Customer acknowledges that Supplier is regularly audited against ISO 27001 standards by independent third party auditors.  Upon reasonable request, Supplier shall supply a summary copy of its audit report(s) to Customer, which shall be subject to the confidentiality provisions of this agreement. 

The Customer shall defend, indemnify and hold harmless Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Company's disclosure of such Personal Data to Supplier for the purpose of providing the Services.