1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Licence Agreement (the “Agreement”).
(a) Authorised Users: those employees, agents, students and/or parents of the Customer who are authorised by the Customer to use the Services and the Documentation. Where the Customer contracts with Wonde on behalf of more than one educational establishment, this shall include the employees, agents, students and parents of all educational establishments represented by the Customer who are named on the Proposal Information.
(b) Authorised User Account: an individual account linked to the Software, established by an Authorised User for use of the Services.
(c) Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
(d) Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.1.
(e) Customer: the school, educational establishment or other customer organisation which is receiving the Services.
(f) Customer Data: the data inputted by the Customer, Authorised Users, or Wonde on the Customer’s behalf.
(g) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK General Data Protection Regulation; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner’s Office (‘ICO’) or other relevant regulatory authority and which are applicable to a party.
(h) Documentation: any documentation or information made available to the Customer by Wonde whether digitally or physically (including but not limited any such information provided online) which sets out a description of the Services (including the features for each version of the Service) and the user instructions for the Services.
(i) Effective Date: the date of this Agreement.
(j) Initial Term: the initial term of this Agreement which shall be 12 months from the Effective Date (unless a different length term is set out in the Proposal Information or if otherwise agreed in writing between the parties).
(k) Insolvency Event: any one or more of the following events in any jurisdiction in relation to a party: making an application for a Company Voluntary Arrangement or Individual Voluntary Arrangement; the filing of a bankruptcy petition; the filing of a petition, making of an application, or passing of a resolution for the winding up of the party or for the appointment of an administrator, liquidator, receiver or trustee in bankruptcy of that party; the taking of any steps by any person to enforce any security over the assets of the party; any event analogous or which has an effect equivalent or similar to any of the foregoing.
(l) Live Date: the date upon which the Customer is to have access to the Software and Services, as set out in the Proposal Information or otherwise agreed between Wonde and the Customer.
(m) Proposal Information: the proposal document or information (including any such information issued via the Wonde platform or email or any other method used by Wonde from time to time) issued by Wonde to the Customer, and agreed by the Customer (such agreement will include the Customer’s continued use of the related Services), detailing the scope of Services, Subscription Fees, number of initial Authorised Users, and other matters.
(n) Renewal Period: the period described in clause 13.1.
(o) Services: the subscription services provided by Wonde to the Customer under this Agreement via the Wonde school platform or such other platform, application or website as notified from time to time by Wonde, as more particularly described in the Documentation.
(p) Software: the online software applications provided by Wonde as part of the Services, with the functionality as described in the Proposal Information and Documentation.
(q) Subscription Fees: the subscription fees (if any) payable by the Customer to Wonde for use of the Services, as set out in the Proposal Information and subsequently varied in accordance with clause 8.2.
(r) Subscription Term: has the meaning given in clause 13.1 (being the Initial Term together with any subsequent Renewal Period(s)).
(s) Support Terms: the support terms that are relevant to the Customer’s scope of Services from time to time.
(t) TPAs: applications provided by third party providers with which the Customer shares data using the Software.
(u) 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.
(v) Wonde: Wonde Limited, a company incorporated in England and Wales with company number 14160647 or any other such permitted assigns from time to time.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 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.
1.6 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.
1.7 A reference to writing or written includes email or through our platform but not fax.
1.8 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. LICENCE
2.1 Wonde 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 operations.
2.2 In relation to the Authorised Users, 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 maximum number of Authorised Users specified in the Proposal Information, or otherwise agreed with Wonde in writing from time-to-time;
(b) it will not allow or suffer an Authorised User Account to be used by more than one individual Authorised User; and
(c) each Authorised User shall keep a secure password for their Authorised User Account.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, discriminatory, obscene, infringing, harassing or racially or ethnically offensive, or otherwise illegal or causes damage or injury to any person or property.
2.4 The Customer shall not:
(a) use the Services and/or Documentation to provide services to third parties (other than students and parents of students of the Customer); or
(b) subject to clause 15.7(a), 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
(c) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
(d) introduce or permit the introduction of any Virus or other vulnerability into Wonde’s network and information systems.
2.5 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 Wonde.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer, except where expressly agreed in the Proposal Information.
3. SERVICES
3.1 Wonde 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 Wonde will, as part of the Services, provide the Customer with support in accordance with the current Support Terms applicable to the version of the Services subscribed for by the Customer, which will be agreed separately between the parties at the point of purchase. Wonde may update the Support Terms from time to time at its discretion.
4. DATA PROTECTION
4.1 The terms of Wonde’s data processing agreement apply between Wonde and the Customer. Such agreement will be entered into via the Wonde platform or such other method as agreed from time to time.
4.2 Wonde’s privacy notice (as amended from time to time) applies to personal data collected by Wonde during the provision of Services to the Customer.
5. THIRD PARTY APPLICATIONS
5.1 The Services allow the Customer to connect with, and share data with TPAs.
5.2 Wonde makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, TPAs. Wonde does not endorse or approve any TPA which can be connected to via the Services.
5.3 Any contract entered into with a TPA provider, and any transaction completed via any TPA, is between the Customer and the relevant third party, and not Wonde.
5.4 The Customer must ensure that any TPA to which data is transferred using the Services is appropriate for the Customer’s needs. The Customer is responsible for conducting its own due diligence on the data protection status and processes of each TPA and its provider with whom the Customer shares data using the Services. Wonde does not carry out any checks on the data protection procedures, or suitability, of TPAs and their providers.
5.5 The Customer is responsible for ensuring it only shares data with TPAs in respect of which it has a contract and data sharing agreement, even where that TPA is shown as accessible via the Software. The Customer is responsible for adding TPAs to the App Directory within the Software, and Wonde is not able to validate whether the TPA has been correctly added to the App Directory.
5.6 The Customer consents to Wonde liaising with any TPA provider with which the Customer shares Customer Data, regarding the Customer’s accounts and Customer Data for the purpose of providing the Services.
6. WONDE’S OBLIGATIONS
6.1 Wonde undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Wonde’s instructions, or modification or alteration of the Services by any party other than Wonde or Wonde’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Wonde 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 undertaking set out in clause 6.1.
6.3 Wonde:
(a) 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 vulnerabilities or Viruses;
(iv) the information contained in the Software or Documentation is accurate, up to date or complete;
(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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 This Agreement shall not prevent Wonde from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6.5 Wonde warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6.6 Wonde shall follow its archiving procedures for Customer Data and any such procedure may be amended by Wonde 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 Wonde shall be for Wonde to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Wonde in accordance with its archiving procedure as at such time. Wonde 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 Wonde 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:
(a) provide Wonde with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Wonde;
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, Wonde may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) comply with, and ensure that the Authorised Users comply with, any terms of use for the Wonde website or Software applicable from time to time;
(e) 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;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for Wonde, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(g) ensure that its network and systems comply with the relevant specifications provided by Wonde from time to time; and
(h) 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 Wonde’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 telecommunications links or caused by the internet.
7.2 or The Customer shall own all rights, 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.
7.3 The Customer shall defend, indemnify and hold harmless Wonde against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s breach of this Agreement or use of the Services and/or Documentation in breach of this Agreement.
8. CHARGES AND PAYMENT
8.1 Subject to clause 8.3, the Customer shall pay the Subscription Fees (if any) to Wonde as follows (unless agreed otherwise in the Proposal Information or in writing between Wonde and the Customer):
(a) the Subscription Fees shall be due on the later of the Live Date and the date at which Wonde notifies you that you are liable for the Subscription Fees. Wonde shall not be required to make the full Services available unless and until the Subscription Fees have been paid. Pursuant to clause 13.2, the Subscription Fees will relate to a 12 month period commencing at the date at which the Customer becomes liable for such amount;
(b) Wonde shall issue an invoice for the Subscription Fees for each Renewal Period not more than 3 months before the commencement for that Renewal Period, and the Subscription Fees shall be payable within 14 days of the date of the invoice; and
(c) all other Subscription Fees shall be due within 14 days of the date of an invoice from Wonde.
8.2 Wonde may vary the Subscription Fees for each Renewal Period by giving the Customer not less than 3 months notice of the variation, unless agreed otherwise in the Proposal Information. Upon receipt of such notice, the Customer shall be entitled to object to the variation by giving a notice in writing within 10 Business Days of receipt of the notice of variation from Wonde. Where the Customer gives such notice, the variation shall not apply, and this Agreement shall continue on the existing terms for the then Initial Term or Renewal Period but in this scenario, Wonde shall be entitled to terminate this Agreement to take effect at the expiry of the next occurring Initial Term or Renewal Period (whichever applicable) notwithstanding the clause 13.1(a) requirement for 3 months’ notice.
8.3 In addition to clause 8.2, Wonde may at its sole discretion on an annual basis with effect from each anniversary of the Effective Date increase the Subscription Fees in line with the Consumer Price Index in the preceding 12-month period.
8.4 Wonde may, from time to time, offer (expressly or implicitly) to new Customers a free of charge 6 month trial period for its Services (‘Trial’) commencing from the date of the Customer’s initial account creation. At the expiry of such Trial, Wonde shall have the right to automatically charge schools on a yearly basis for the continued use of the Services at the then current rates published from time to time. Any failure by Wonde to charge Customers directly after the expiry of a Trial shall not prejudice or compromise the right for Wonde to directly charge the Customer for such amounts at any time afterwards.
8.5 If Wonde has not received payment of the relevant Subscription Fees by the due date (and the Customer has not notified Wonde that they want to downgrade the Services), without prejudice to any other rights and remedies of Wonde:
(a) may without liability to the Customer, downgrade all or part of the Services; and/or
(b) may without liability to the Customer, disable the Customer’s and its Authorised Users’ password, account and access to all or part of the Services and Wonde shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(c) interest may accrue on a daily basis on such due amounts at an annual rate equal to 4% over the Bank of England base rate from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.6 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 12.3(b), non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to Wonde’s invoice(s) at the appropriate rate.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that Wonde 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.
9.2 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 this Agreement:
(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
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
9.3 Wonde 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.
10. FEATURE SPECIFIC TERMS
10.1 The terms in this clause 10 apply to specific features of the Services, where these are included within the Services provided to the Customer. Please note that some of the features set out below may not be included in every Customer’s subscription.
App Privacy Audit and Documentation
10.2 Where Wonde provides details of a TPA to the Customer for the purpose of the Customer conducting due diligence and/or a data protection impact assessment in respect of its use of the TPA:
(a) Wonde will use reasonable endeavours to ensure the information supplied is accurate. Wonde does not give any warranty, representation or undertaking that the information provided is accurate or complete.
(b) Wonde is not responsible for, and shall have no liability in respect of, any omissions or inaccuracy in the information provided.
(c) The Customer is responsible for conducting its own assessment (including any data protection impact assessment) of the TPA and the risks and benefits of sharing data with the TPA. Wonde does not analyse or assess the information provided.
App Directory
10.3 In respect of any use of any App Directory, Wonde does not endorse any TPA included in the App Directory, or assess the quality or suitability of any such TPA. The Customer must conduct its own diligence on any TPA selected from the App Directory, and satisfy itself that the TPA is suitable for the Customer’s purposes.
Data Sharing Agreements
10.4 Where Wonde provides access to data processing or data sharing agreements of TPAs accessible through the Services, Wonde is not responsible for the content of those agreements, which are the responsibility of the TPA provider. The Customer must review all such agreements, and take legal advice, on its own behalf.
Enterprise School Management
10.5 The scope of the Services provided will be agreed between the parties from time to time.
10.6 The Customer shall at all times have sufficient authority and consent to act or make decisions on behalf of any school (or any other relevant organisation) including but not limited to in respect of processing or transferring any personal data or in respect of any purchasing commitments.
Data Protection Impact Assessments
10.7 The scope of the Services provided will be agreed between the parties from time to time.
10.8 Where Wonde provides access to a data protection impact assessment (‘DPIA’) template through the Services, and where possible pre-populates with information, Wonde is not responsible for the content, or ongoing maintenance of the template, or the accuracy of the information which are the responsibility of the Customer. The Customer must review all such DPIA’s, and take legal advice, on its own behalf.
10.9 Wonde will use reasonable endeavours to ensure the DPIA template and any related information provided to a Customer is accurate. However, Wonde does not give any warranty, representation or undertaking that the information provided is accurate or complete, and does not analyse or assess the information on behalf of a Customer.
10.10 Wonde is not responsible for, and shall have no liability in respect of, any omissions or inaccuracy in the information provided.
10.11 The Customer is responsible for determining whether they are required to conduct a DPIA before undertaking any data processing that presents a privacy risk by virtue of its nature, scope or purposes, conducting all necessary requirements of a DPIA including but not limited to compliance with Data Protection Legislation, keeping any DPIA under review and implementing measures and safeguards to mitigate any identified risks.
Record of Processing Activity
10.12 The scope of the Services provided will be agreed between the parties from time to time.
10.13 Where Wonde provides access to a record of processing activity (‘ROPA’) template through the Services, and where possible pre-populates with information, Wonde is not responsible for the content, or ongoing maintenance of the template, or the accuracy of the information which are the responsibility of the Customer. The Customer must review all such ROPA’s, and take legal advice, on its own behalf.
10.14 Wonde is not responsible for, and shall have no liability in respect of, any omissions or inaccuracy in the information provided.
10.15 The Customer is responsible for determining whether they are required to conduct a ROPA, conducting all necessary requirements of a ROPA including but not limited to compliance with Data Protection Legislation, keeping any ROPA under review and implementing measures and safeguards to mitigate any identified risks.
Subject Access Requests
10.16 The scope of the Services provided will be agreed between the parties from time to time.
10.17 As part of any data subject access request (‘SAR’) Services, provided, Wonde shall use commercially reasonable endeavours to provide information regarding the type of data a Customer has shared with TPA’s. However, Wonde does not give any warranty, representation or undertaking that the information provided to the Customer as part of such services will be complete or accurate, and it is the responsibility of the Customer to check all other accessible repositories for such information required to complete any subject access request. Wonde also recommends that for a copy of any data, the Customer requests any data directly from the TPA’s.
10.18 The Customer must also review all such information provided by Wonde, and take legal advice, on its own behalf in relation to any obligations to complete a SAR.
10.19 The Customer is responsible for obtaining any and all personal data from Wonde and any TPAs as required to comply with their obligations to complete a SAR.
10.20 Further, it will be the responsibility of the Customer to comply with all other requirements of any SAR to which it is subject, including but not limited to timescales, the format and method of delivery in which the information is provided.
11. CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, assets, affairs, staff, students, Authorised Users, Customer Data, clients or suppliers of the other party, except as permitted by Clause
11.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, 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 this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. However, the disclosing party must promptly notify the other party of such disclosure requirement.
11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
12. LIMITATION OF LIABILITY
12.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for use of the Services and the Documentation, and the transfer of Customer Data to third parties by the use of the Services. Wonde shall have no liability for any damage caused by:
(i) the Customer using the Services;
(ii) any transfer of Customer Data using the Services, including any actual or alleged infringement of applicable data protection laws relating to sharing of Customer Data with TPA providers;
(iii) errors or omissions in any information, instructions or scripts provided to Wonde by the Customer in connection with the Services (including errors in Customer Data);
(iv) any actions taken by Wonde at the Customer’s direction;
(v) any errors or omissions in any information contained within the Documentation or the Software;
(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.
12.2 Nothing in this Agreement excludes the liability of Wonde:
(a) for death or personal injury caused by Wonde’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.1 and clause 12.2:
(a) Wonde shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
(i) direct losses comprising loss of profits, loss of business, loss of expenses, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss; or
(ii) for any special, indirect or consequential loss, costs, damages, charges or expenses,
in each case however arising under this Agreement or in connection with the provision of the Services; and
(b) Wonde’s total aggregate liability in contract (including in respect of any indemnity given in this agreement), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
12.4 The Customer agrees the limitations of liability in this clause 12 are reasonable.
12.5 Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Wonde’s intellectual property rights.
13. TERM AND TERMINATION
13.1 This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall automatically renew for successive periods of 12 months and such renewal period will commence either at the expiry of the Initial Term or, in accordance with clause 13.2, at the date at which the Customer becomes liable for Subscription Fees (if applicable) (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days (or such other period as agreed between the parties from time to time) before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 For the avoidance of doubt, if the Customer opts to downgrade the Services, or Wonde exercises its rights in accordance with clause 8.5(a), this shall not constitute a termination of the Agreement and all applicable provisions of the Agreement will continue to apply.
13.3 In accordance with clause 8, if the Customer becomes liable for Subscription Fees either during the Initial Term or any subsequent Renewal Period then at such point, unless a new licence agreement is entered into between the parties, the Renewal Period will restart its 12 month period at such point notwithstanding if it is part way through such Initial Term or Renewal Period (whichever is relevant at that date).
13.4 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 10 Business Days after being notified in writing to make such payment (except in relation to the Subscription Fees if the Customer has notified Wonde that they have chosen to downgrade the Services);
(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 in writing 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;
(d) the other party is subject to an Insolvency Event; or
(e) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.5 For the purposes of clause 13.2(b), a material breach shall include any breach of clause 9.2 (Proprietary Rights).
13.6 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 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; and
(c) 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
14.1 Neither party shall 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 result from events, circumstances or causes beyond its reasonable control (provided that this shall not apply to any obligation of the Customer to pay the Subscription Fees or other sums due under this Agreement). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this Agreement by giving 30 days’ written notice to the affected party. 15.
15. GENERAL
15.1 Authority
the Customer shall ensure that any person approving this Agreement or any other document or terms relating to the Services, has authority to enter into the Agreement, document or terms on behalf of the Customer. Wonde is entitled to rely upon such a person having sufficient authority to bind the Customer, and shall not be required to otherwise confirm or validate the authority of any such person.
15.2 Conflict
If there is an inconsistency between any of the provisions in this Agreement and the Proposal Information, the provisions in the Proposal Information shall prevail.
15.3 Variation
(a) Subject to clause (b), no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(b) Wonde may vary the terms of this Agreement at any time by giving not less than 1 months’ notice to the Customer. Upon receipt of such notice, the Customer shall be entitled to object to the variation by giving a notice in writing within 10 Business Days of receipt of the notice of variation from Wonde. Where the Customer gives such notice, the variation shall not apply, and this Agreement shall continue on the existing terms for the then current Initial Term or Renewal Period (unless agreed otherwise in writing between Wonde and the Customer).
15.4 Waiver
(a) 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.
(b) 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.
15.5 Severance
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.
15.6 Entire agreement
(a) This Agreement, and the other agreements referred to in it, 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.
(b) 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.
(c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
(d) Nothing in this clause shall limit or exclude any liability for fraud.
15.7 Assignment
(a) Except as set out in clause (b) below, neither the Customer nor Wonde shall, without the prior written consent of the other, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) Wonde may at any time assign, transfer, charge, novate, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement to any member of its Group. For these purposes, Group shall mean any subsidiary undertaking of Wonde, parent undertaking of Wonde, or subsidiary undertaking of such parent undertaking (as those terms are defined in s1161 & 1162 Companies Act 2006).
15.8 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.
15.9 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.
15.10 Notices
(a) Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(i) 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 corporate body) or its principal place of business (in any other case); or
(ii) sent by email to the addresses for service given in the Proposal Information.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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
(iii) if sent by email, at the time of transmission.
(c) 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.
15.11 Governing law and Jurisdiction
(a) 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.
(b) 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).