Ciptex is in the business of developing, implementing and supporting Customer Engagement Software solutions. These Terms and Conditions are effective as of 26th June 2025 (Ciptex Terms and Conditions V2.0) (the Terms and Conditions) and apply to all services provided by Ciptex Ltd, and supersede and replace any previous terms and conditions applicable to such services. If you are an existing customer and have agreed to a previous version of our terms and conditions, prior to 26th June 2025, then we have sent you a notice, in accordance with those terms and conditions, that we have updated our terms and conditions. By continuing to use our Services after the date set out in that notice, you are confirming that you accept these updated Terms and Conditions.
If you have a separate written agreement with Ciptex Ltd, then the updates to the Terms and Conditions will not apply to you.
In these Terms and Conditions: references to Ciptex or Supplier refer to Ciptex Ltd, company number 05671321, registered office address Oakmoore Court, Kingswood Road, Hampton Lovett, Droitwich, WR9 0QH, United Kingdom; and references to Customer refer to the customer whose details are set out in an Order Form. The Services to be provided by Ciptex to the Customer are as set out in an Order Form.
AGREED TERMS
1. Definitions and Interpretation
1.1. The following definitions and rules of interpretation apply in these Terms and Conditions and the Agreement:
Acceptance Criteria: any acceptance criteria agreed in writing by the parties in a Statement of Work in respect of Customisations developed for the Customer.
Acceptance Tests: any acceptance tests agreed in writing by the parties in a Statement of Work in respect of Customisations developed for the Customer, to be performed by the Customer in accordance with clause 4.
Affiliates: means any entity that directly or indirectly Controls or is Controlled by, or is under common Control with, that party.
Agreement: the agreement consists of: (a) these Terms and Conditions; (b) any Order Form and Statement of Work provided by Ciptex and approved by the Customer; (c) in respect of any Software Services, the applicable End User Terms; (d) if Support Services are purchased by the Customer (as set out in an Order Form), the Support Schedule; (e) the Data Processing Addendum and the Sub-processor List; and (f) any other documents incorporated by reference.
Applicable Laws: all laws, statutes, regulations, decisions, rulings, sanctions, governmental and regulatory policies, industry guidelines and/or codes of practice which may from time to time be in force anywhere in the world and relevant to any rights and/or obligations under and/or the performance of the Agreement.
Authorised Users: those named users (being employees, agents, and independent contractors of the Customer) who are authorised to use the Software Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change Order: a document setting out any proposed changes to a Statement of Work and the effect those changes will have on the Services, the Charges and any other terms of the Agreement, which document shall be prepared, agreed and signed in accordance with the procedure set out in clause 9.
Charges: the fees payable for the Services, as set out in an Order Form or Statement of Work, or otherwise set out or provided for in the Agreement.
Commencement Date: the commencement date set out in the Order Form.
Confidential Information: all information of a confidential nature or that should be reasonably understood to be confidential given the nature of the information and the circumstances surrounding the disclosure (whether written or oral and however recorded and whether marked as confidential or not) belonging to or relating to a party which is disclosed to or received by the other party, whether before or after the Commencement Date, directly or indirectly, in connection with the Agreement, including the terms of the Agreement and information concerning the disclosing party’s business, operations, financial information and affairs; plans, intentions, customers, clients, suppliers, distribution channels, market opportunities, operations, processes, transactions; know-how, designs, trade secrets, services, products, software and price lists; security reports and audit reports. In the case of Ciptex, Confidential Information shall include all Confidential Information of Third Party Providers and their Affiliates.
Control: 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.
Customer Usage Data: means data derived from the Customer’s use of the Software Services, including volumes, frequencies, and bounce rates of calls, and performance data for the Software Services.
Customer Data: data and other information which is provided to or processed by Ciptex or a Third Party Provider in connection with the Customer’s use of the Software Services, or which is held or stored on, or processed by, the Customer using the Software Services.
Customer Services: means any software application or service provided by the Customer, or provided directly by a third party to the Customer, and which is used by the Customer in connection with its use of the Software Services, including (if applicable) sources from which the Customer retrieves Customer Data and destinations to which the Customer transmits Customer Data using the Software Services.
Customisations: means any customisations to the Software Services, to be developed by Ciptex for the Customer, which are agreed by the parties and set out in a Statement of Work.
Data Protection Laws: all applicable privacy and data protection laws in force from time to time in the United Kingdom, including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder), and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and in each case as may be amended, extended, re-enacted, replaced or superseded from time to time.
Documentation: any documentation for the Software Services, including any usage guides and policies provided or made available to the Customer.
End User: any end user of any services provided by the Customer which is enabled by the Software Services, including via any Customer Services.
End User Terms: the terms of service applicable to the use of the Software Services by the Customer, a link to which is provided by Ciptex to the Customer in any document which forms part of the Agreement or in the Sub-processor List, as such terms may be amended or updated from time to time by Ciptex giving notice to the Customer.
Force Majeure Event: any act, event, omission or accident beyond the reasonable control of a party, including any of the following: flood, earthquake, storm or other adverse weather conditions or natural disaster; war, threat of or preparation for war or armed conflict; imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination; sonic boom; compliance with Applicable Laws; any change in law or other action taken by a government or public authority (including a failure to grant or the withdrawal of any licence or consent, imposition of a restriction on public gatherings or any change in the law or interpretation of the law) or compliance with any such law or action; epidemic or pandemic; fire or explosion; collapse of building structures, failure of plant, machinery, computers or vehicles; any labour dispute, including strikes, industrial action and lockouts (not involving the workforce of the affected party); non-performance by suppliers or subcontractors; and the interruption or failure of a transport network or utility service, including internet, electric power, gas or water supply.
Initial Subscription Term: the initial term of any subscription to use the Software Services and/or any Support Services, as set out in the Order Form.
Insolvency Event: means, in respect of a company, that it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986, or enters into a composition, compromise or arrangement to reschedule or restructure its debt with or for the benefit of its creditors (except for the purpose of a bona fide reconstruction or amalgamation), or it compulsorily or voluntarily enters into liquidation or commences negotiations in respect of the same (except for the purpose of a bona fide reconstruction or amalgamation), or it has an administrator, receiver, liquidator (except for the purpose of a bona fide reconstruction or amalgamation) or manager appointed over the whole, or a substantial part, of its undertaking or assets or any petition or notice is filed or given in respect of the same by any person, or any creditor or encumbrancer 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 its assets which is not discharged within 14 days, or it ceases or threatens to cease business or is dissolved, or if any equivalent or similar event occurs or proceeding is taken, with respect to that company in any jurisdiction to which it is subject.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Form: an order form provided by Ciptex and approved by the Customer, setting out the Services to be provided and the Charges.
Professional Services: any services to be provided by Ciptex to the Customer under the Agreement (other than Software Services and Support Services), which may include the set up and/or configuration, customisation, integration, development or consultancy work in respect of the Software Services, as are set out in an Order Form or Statement of Work.
Renewal Term: the renewal term for any subscription to use the Software Services and/or any Support Services, being a period of 12 months.
Software Services: any software (including “Software as a Service”), including any customised modifications, amendments, Software Updates or upgrades, or systems provided by Ciptex to the Customer as part of the Services, and any Third Party Services, as set out in the relevant Order Form, but excluding any Customer Services.
Software Updates: any update or patch to the Software Services (or any part of them) which has been produced primarily to overcome any defect or error in the relevant software, excluding any new versions of or upgrades to the Software Services.
Services: the services which are to be provided by Ciptex pursuant to and as set out in a Statement of Work or Order Form, which may include Software Services, Professional Services and Support Services.
Services Commencement Date: the commencement date for Services set out in an Order Form or Statement of Work.
Statement of Work: a statement of work provided by Ciptex and approved by the Customer, setting out the scope of any Professional Services.
Sub-processor: any third party processor engaged by Ciptex to process Customer Personal Data as a sub-processor, as set out in the Sub-processor List.
Sub-processor List: the Sub-processor list on the Ciptex website, which may be updated or amended by Ciptex from time to time.
Support Schedule: the support schedule setting out the Support Services to be provided by Ciptex to the Customer, as may be updated by Ciptex from time to time.
Support Services: any support services to be provided by Ciptex in respect of the Software Services, as set out in the Order Form or Statement of Work.
Term: the term of the Agreement, as set out in clause 2.2.
Third Party Services: any third party software, products or services that are purchased by the Customer from Ciptex, as set out in the Order Form, or which are incorporated in any software provided by Ciptex, as part of the Software Services.
Third Party Provider: the provider of any Third Party Services.
Year: a period of 12 months commencing on the Commencement Date, and each period of 12 months thereafter, during the Term.
1.1. References to clauses are to the clauses of these Terms and Conditions.
1.2. Clause headings shall not affect the interpretation of these Terms and Conditions.
1.3. A reference to: (i) a party includes that party’s personal representatives, successors and permitted assigns; (ii) persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality); (iii) a company includes any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision.
1.6. Any obligation on a party not to do or omit to do anything includes an obligation not to allow that thing to be done or omitted to be done by any other person.
1.7. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8. Any words following the terms including, include, for example, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9. The terms subsidiary and holding company shall have the meanings set out in section 1159 of the Companies Act 2006.
2 Agreement and Term
2.1. Any Order placed by the Customer for Services shall be governed by these Terms and Conditions, any applicable End User Terms, the Support Schedule and the Data Processing Addendum, to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2. The Agreement shall commence on the Commencement Date and shall continue in force, unless terminated earlier in accordance with its terms:
(a) for the duration of any Initial Subscription Term and any Renewal Term pursuant to clause 2.4; or
(b) if no Software Services or Support Services are being provided, until the performance of all Professional Services under an Order Form or Statement of Work are complete,
unless terminated earlier by either party under clause 14.1
2.3. The Services shall commence on the applicable Services Commencement Date.
2.4. The Software Services and Support Services shall be provided for the relevant Initial Subscription Term set out in the Order Form or Statement of Work, and thereafter shall automatically renew for the Renewal Term (and at the end of each Renewal Term for a further Renewal Term), unless either party gives notice to the other party to terminate the Agreement, at least 90 days’ prior to the expiry of the Initial Subscription Term or then current Renewal Term (as applicable) in accordance with clause 14.1.
2.5. In the event of any conflict or inconsistency between:
(a) the clauses of these Terms and Conditions and the provisions of an Order Form or Statement of Work, these Terms and Conditions shall prevail;
(b) the clauses of these Terms and Conditions and the Support Schedule, these Terms and Conditions shall prevail;
(c) the clauses of these Terms and Conditions and the End User Terms, the End User Terms shall prevail;
(d) the clauses of these Terms and Conditions and the Data Processing Addendum, the Data Processing Addendum shall prevail.
3. Services
3.1. All Services shall be agreed by the parties in an Order Form or Statement of Work.
3.2. Ciptex shall:
(a) perform the Professional Services agreed by the parties in a Statement of Work;
(b) perform the Professional Services with due care, skill and diligence, using personnel who are suitably qualified and trained;
(c) if required to attend the Customer’s premises in the provision of the Services, comply with reasonable policies of the Customer which have been provided to Ciptex prior to the Commencement Date.
3.3. Any timescales for performance of the Professional Services shall be estimates only and time shall not be of the essence.
3.4. Once the implementation and set up of the Software Services is complete, Ciptex shall provide to the Customer a non-exclusive, non-transferable, and non-sublicensable right to access and use the Software Services on and subject to the terms set out in these Terms and Conditions and the End User Terms.
3.5. Once Services are agreed in a Statement of Work, the Customer may not cancel such Services. Once a scheduled start date has been provided for the Professional Services, the Customer may not cancel, or postpone or rearrange the start date of, the Professional Services.
3.6. Ciptex may provide the Professional Services onsite or remotely, at its discretion. Where Ciptex provides the Professional Services at the Customer’s premises, the Customer shall make available free of charge all facilities and services that Ciptex may reasonably require in performing its obligations.
4. Acceptance
4.1. Where it is agreed in a Statement of Work that Customisations shall be subject to Acceptance Tests, the Customer shall complete the Acceptance Tests within 10 Business Days of Ciptex notifying the Customer that the Customisations are ready for testing.
4.2. If any Customisation fails to pass the Acceptance Tests, the Customer shall, within 3 Business Days from the completion of the Acceptance Tests, provide a written notice to this effect to Ciptex, giving details of such failures (including, where relevant, replication steps of such failures or other suitable evidence). Ciptex shall remedy the defects and/or deficiencies and the relevant Acceptance Tests shall be repeated within a reasonable time. If the Customisation fails to pass any further Acceptance Tests, Ciptex shall remedy the defects and/or deficiencies and the relevant Acceptance Tests shall be repeated within a reasonable time.
4.3. Acceptance of Customisations shall be deemed to have occurred on whichever is the earliest of:
(a) written confirmation by the Customer to Ciptex that the Customisations pass the Acceptance Tests;
(b) the expiry of 14 Business Days after Ciptex gives notification to the Customer pursuant to clause 4.1 that the Customisations are ready for testing, where the Customer has not provided details of any Acceptance Test failures in accordance with clause 4.2; and
(c) the use of the Software Services by the Customer in the normal course of its business.
5. Customer obligations
5.1. The Customer acknowledges that Ciptex is dependent on input from and the cooperation of the Customer in performing the set up and activation of the Software Services. The Customer shall:
(a) cooperate with Ciptex, and provide all such assistance as Ciptex may require in providing the Services;
(b) provide all information, materials and documents as Ciptex may request, and complete all such tasks as are allocated to the Customer, or which are stated to be the Customer’s responsibility, in a Statement of Work, by a suitably qualified person, in a timely manner and in accordance with any timescales set out in the Statement of Work or any project plan agreed by the parties.
5.2. The Customer shall, and shall procure that its Authorised Users shall:
(a) comply with all Applicable Laws, and any instructions issued by a regulatory body, in its use of the Services;
(b) use the Software Services and Documentation in accordance with the Agreement;
(c) obtain and shall maintain all necessary licences, consents and permissions which are necessary to enable it to comply with its obligations under the Agreement and in respect of the use of the Services;
(d) provide Ciptex with all necessary cooperation and access to such information, premises, systems and network, as are required by Ciptex in order to perform the Services (including Customer Data, security access information and systems and technical information), and shall ensure that such information is accurate and complete;
(e) ensure that it has all necessary hardware, software, internet, network communications and other technology, and that the Customer’s computer equipment, systems, network and browser meet all technical requirements necessary in order to access and use the Software Services which are notified to it by Ciptex from time to time.
5.3. The Customer acknowledges that the Third Party Services may be subject to separate End User Terms or a direct agreement between the Customer and Third Party Provider. The Customer shall, and shall procure that its Authorised Users shall, comply with the applicable End User Terms in respect of its use of the Software Services, and any other applicable policies or requirements which apply to the use of Third Party Services.
5.4. The Customer shall permit Ciptex, its licensors or designated representatives, on giving reasonable notice, to audit the use of the Software Services by the Customer, remotely or at the Customer’s premises, to establish whether such use is in compliance with the Agreement.
5.5. The Customer shall indemnify Ciptex on demand against: (a) all losses, liabilities, damages, claims, costs and expenses (including legal fees and other professional costs) suffered or incurred by Ciptex arising out of or in connection with any breach by the Customer or any of its Authorised Users of clause 5.3 or the End User Terms; (b) any claim or allegation that the Customer Services infringe the Intellectual Property Rights of a third party; and (c) any costs, fines or penalties imposed on Ciptex or its Third Party Providers by a government or regulatory body or a telecommunications provider as a result of the use of the Software Services by the Customer, its Authorised Users or End Users.
6. Charges and payment
6.1. The Customer shall pay the Charges to Ciptex in accordance with this clause.
6.2. Unless expressly stated otherwise in an Order Form or Statement of Work:
(a) the Charges payable for Professional Services are charged on a time and materials basis; and
(b) any Charges set out in an Order Form or Statement of Work are an estimate of the time required for the provision of the Professional Services set out in the Order Form or Statement of Work. Time spent in excess of the estimate, or any time spent on Professional Services outside the scope of services set out in the Order Form or Statement of Work shall be chargeable at Ciptex’s then standard rates.
6.3. The Charges are exclusive of any applicable communications service or telecommunication provider or carrier fees or surcharges (Communications Surcharges), which shall be payable by the Customer in connection with its use of the Software Services.
6.4 The Customer shall be responsible for all reasonable expenses incurred by Ciptex in the provision of the Services, in respect of which receipts or other evidence of payment has been provided.
6.5. Unless set out otherwise in the Order Form or Statement of Work, the Customer shall pay each invoice in full and cleared funds within 30 days of the date of invoice to the bank account specified in the invoice.
6.6. All amounts and fees stated or referred to in the Agreement:
(a) shall be payable in the currency stated on the Order Form, are non-refundable, and are exclusive of value added tax or any other applicable tax or duty payable upon such sums, which shall be payable by the Customer in addition, at the applicable rate;
(b) shall be paid in full without any deduction, discount, set off or abatement, except as required by law and the Customer shall not be entitled to assert any credit, set off or counterclaim against Ciptex in order to justify withholding payment of any such amount in whole or in part.
6.7. If the Customer fails to make any payment due to Ciptex by the due date for payment, Ciptex may, without prejudice to any other rights and remedies it may have:
(a) suspend the Customer’s use of and/or access to the Software Services, and Ciptex shall be under no obligation to provide any Services whilst the invoice(s) concerned remain unpaid;
(b) terminate the Agreement with immediate effect on providing written notice to the Customer;
(c) charge the Customer interest on a daily basis in respect of the overdue amount at the rate of 3% per annum above Bank of England’s base rate from time to time, from the due date and continuing until payment of the overdue amount is received in full by Ciptex, whether before or after judgment; and/or
(d) recover from the Customer any fees incurred by Ciptex (including debt recovery agency fees, legal fees and court costs) in recovering the overdue amount.
6.8. Ciptex may, on giving the Customer at least 30 days’ notice:
(a) apply an increase to the Charges each year;
(b) increase the rates applicable to Professional Services at any time, save that this shall not affect the Charges already agreed for any Professional Services in an Order Form or Statement of Work; and
(c) increase the Charges at any time due to any increase in fees charged by a Third Party Provider or telecommunications provider or carrier, or to take account of increases in fees or costs charged to Ciptex by third party providers engaged by Ciptex in connection with the provision of the Services.
6.9. If the Customer disputes any Charges, it must notify Ciptex in writing within 14 days of the date of invoice of the amount in dispute, it must act reasonably and in good faith in resolving the dispute, and shall pay the balance of the invoice not in dispute in accordance with the payment terms set out in this clause 5. Either party may escalate the matter as a dispute in accordance with clause 17.
7. Software Updates
7.1. Ciptex or any Third Party Provider, may make changes or additions to the Software Services from time to time, including to update the Software Services to support new features.
8. Suspension of Software Services
8.1. The Customer acknowledges that Ciptex or its Third Party Providers may suspend access to and use of any of the Software Services to the extent required in order to improve, update or alter, or replace, maintain or repair, any of the Software Services (including to rectify any malfunction, fault or damage).
8.2. Ciptex shall provide such notice as it is able to in respect of any planned maintenance which is known in advance to be likely to cause the Software Services to be unavailable and of which it has been given notice by the Third Party Provider.
8.3. Ciptex shall be entitled, without notice to the Customer, without liability and without prejudice to any other of its rights or remedies under the Agreement or under any applicable End User Terms, to suspend access to and use of any of the Software Services:
(a) where required by any regulatory, governmental or other competent authority;
(b) in the event that the Customer’s use of the Software Services is in breach of any of the provisions of clause 5; or
(c) as a result of, to deal with, or to protect the Software Services against any actual, suspected or threatened security breach, virus or attack on any of the Software Services.
9. Change Control
9.1. Either party may, by giving written notice to the other at any time during the Agreement, request a change to the Services (including the scope or execution of any of the Services) (Change Request).
9.2. If either party makes a Change Request, Ciptex shall, at its then standard rates, prepare for the Customer a change order, setting out the details of the change, the Charges payable for the change, any timescales for carrying out such change, and the impact of the change on any other aspects or terms of the Agreement (Change Order). Ciptex shall not be required to make the change unless and until the parties have agreed and signed a written Change Order.
10. Intellectual Property
10.1. The Customer acknowledges and agrees that the Intellectual Property Rights in the Software Services, Documentation, and any modifications and enhancements made thereto, are owned by Ciptex or Third Party Providers. Except as expressly granted under the Agreement, the Customer shall have no right to use, and shall not acquire any other right, licence, title or interest in or to, any Intellectual Property Rights of Ciptex or Third Party Providers.
10.2. The Customer Data is the property of the Customer. The Customer hereby grants to Ciptex, and to the extent required in order to provide the Software Services, to any Third Party Provider, a royalty-free, non-exclusive, worldwide licence to use the Customer Data as necessary to provide the Software Services to the Customer. The Customer warrants that it has all necessary rights in and to the Customer Data in order to grant the rights under this clause.
10.3. Ciptex may obtain, collect, access and use Customer Usage Data derived from the Customer’s use of the Software Services, including for billing and administration purposes.
10.4. Ciptex may use the Customer’s name and logo on Ciptex’s website and for any marketing and promotional material (including press releases), subject to obtaining the Customer’s approval.
11. Confidentiality
11.1. Each party agrees to keep confidential all Confidential Information belonging to the other party and to not, either during or after the Term, use or disclose any such Confidential Information, except with the prior written consent of the other party or as permitted by this clause 11. Each party may, for the purposes of performing its rights and/or obligations under the Agreement and/or seeking professional advice in respect of the same, disclose the other party’s Confidential Information under obligations of confidence only to that party’s employees, officers, agents, personnel and/or professional advisors (and in Ciptex’s case, to Third Party Providers) who have a “need to know” the information in order for that party to exercise its rights or fulfil its obligations under the Agreement. Each party shall take all reasonable steps and precautions to ensure that the persons to whom it makes such disclosures are bound by terms of confidentiality that are at least as protective as the terms of this clause 11, and shall comply with the confidentiality obligations contained in this clause 11 as though they were a party to the Agreement.
11.2. The obligations of confidentiality in this clause 11 shall not extend to any matter which a party can show: (a) is in, or has become part of, the public domain other than as a result of a breach of confidence by that party or any person to whom it has disclosed the information; (b) was already in the receiving party’s possession before disclosure without an obligation of confidence; (c) or becomes available to the receiving party without an obligation of confidence from a third party having the legal right to disclose the information; or (d) is required to be disclosed under any Applicable Law, or by order of a court or governmental body or 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, limits the information so disclosed, takes into account the reasonable requests of the other party in relation to the content of such disclosure and provides all reasonable assistance (at the other party’s cost) in seeking a protective or similar order restricting the extent of the disclosure.
11.3. Each party acknowledges and agrees that damages alone would not be an adequate remedy for any unauthorised disclosure of the other party’s Confidential Information and accordingly, the other party (or in the case of Confidential Information of a Third Party Provider, the Third Party Provider) shall be entitled to the remedies of injunction, specific performance or other equitable or discretionary relief for any threatened or actual unauthorised disclosure of its Confidential Information.
11.4. Neither party shall make any announcement, press release and/or statement relating to the other party and/or in connection with the Agreement at any time during or after the Term except with the prior written agreement of the other party and/or to the extent required pursuant to any Applicable Law or by order of a court or governmental body or authority of competent jurisdiction.
12. Liability
12.1. Nothing in the Agreement excludes the liability of either party for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be limited or excluded under Applicable Law.
12.2. Without prejudice to clause 12.1, Ciptex shall have no liability:
(a) for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks or facilities, including the internet, and Ciptex acknowledges that the Software Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
(b) for any impaired performance or non-performance of any of the Software Services arising from a failure to comply with any specifications or technical requirements relating to the use of the Software Services notified by Ciptex from time to time;
(c) for any fault, failure or unavailability of any of the Software Services caused by the Customer or any third party software, or as a result of any failure, unavailability, speed or limitations of the Customer’s internet and network communications, computer equipment and/or web browser; or
(d) for any changes to, interception of, or loss of Customer Data while in transit via the internet or a telecommunications provider’s network.
12.3. Ciptex gives no warranty or representation that:
(a) the Software Services will meet the Customer’s requirements. The Customer shall be solely responsible for ensuring that the Software Services meet its requirements;
(b) the Software Services will be uninterrupted, available or error free. The Software Services are provided “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement including the implied conditions, warranties and other terms as to satisfactory quality and fitness for purpose.
12.4. Ciptex shall not be liable, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, for any of the following types of losses (whether direct or indirect) howsoever arising under the Agreement,
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of opportunity;
(f) loss of goodwill;
(g) loss of use or corruption of software, data or information, or business interruption; or
(h) special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.5. Ciptex’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of the Agreement, shall not exceed:
(a) in the first Year, the Charges payable by the Customer to Ciptex for that Year; and
(b) in each subsequent Year, a sum equal to the Charges paid by the Customer to Ciptex during the previous Year.
13. Compliance with Laws
13.1. Each party shall comply with Applicable Laws relating to the provision and use of the Services. However, Ciptex is not responsible for compliance with any laws or regulations applicable to the Customer or the Customer’s industry that are not generally applicable to Ciptex.
14. Termination
14.1. Either party may terminate the Software Services and Support Services by giving at least 90 days’ written notice to terminate prior to the expiry of the relevant Initial Subscription Term or then current Renewal Term (as applicable), such notice to expire on the expiry of the Initial Subscription Term or then current Renewal Term (as applicable). The Professional Services may not be terminated.
14.2. Without prejudice to any other rights or remedies to which either party may be entitled, either party may terminate the Agreement with immediate effect without liability to the other party, upon giving written notice to the other party, if:
(a) the other party commits a material breach of any term of the Agreement (other than a payment obligation) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
(b) the other party suffers an Insolvency Event.
14.3. Ciptex may terminate the Agreement with immediate effect by giving written notice to the Customer, without liability, if:
(a) the Customer fails to pay any amount due under the Agreement by the due date for payment;
(b) the Customer breaches any applicable End User Terms;
(c) Ciptex is unable to continue to provide any of the Software Services.
14.4. On termination of the Agreement (howsoever caused):
(a) all rights and licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease using, and Ciptex may with immediate effect terminate the Customer’s access to and use of the Software Services;
(b) the Customer shall immediately pay to Ciptex all sums due to Ciptex under the Agreement, and in respect of any sums which have not yet been invoiced, Ciptex may raise invoices for such sums which shall become immediately payable;
(c) Ciptex will, if requested by the Customer before the date of termination or expiry of the Agreement, and subject to the Customer paying all sums due to Ciptex under the Agreement, agree to provide to the Customer a copy of the Customer Data held on the Software Services, in such format determined by Ciptex, subject to the parties signing a Statement of Work for such work. Such work shall constitute Professional Services, and Ciptex may charge the Customer for providing such services at its then current rates, as set out in the relevant Statement of Work. If the Customer has not requested the Customer Data before termination of the Agreement, Ciptex may delete such Customer Data;
(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; and
(e) any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
15. Force Majeure
15.1. If a party is prevented, hindered or delayed in or from performing its obligations under the Agreement (other than payment) due to a Force Majeure Event, the affected party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations, and the time for the performance of such obligations shall be extended accordingly. The party affected by the Force Majeure Event shall notify the other party as soon as reasonably practicable of the Force Majeure Event.
16. Notices
16.1. Any notice given by a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to the other party’s address as stated at the head of the Agreement or such other address as notified to it (in accordance with this clause) from time to time. Notices may also be given by email if a party has notified the other party in the Order Form (or in accordance with this clause) of the relevant email address to which notices must be sent.
16.2. Notices shall be deemed to have been delivered: (i) at the time of delivery where delivered by hand; (ii) two Business Days after the date of posting where sent by domestic post; (iii) five Business Days after the date of posting where sent by international post; or (iv) one Business Day after transmission in the case of email (provided that no delivery failure notification is received by the sender).
16.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17. Dispute Resolution
17.1. Any dispute between the parties arising out of or in connection with the Agreement or the performance, validity or enforceability of it (a Dispute) shall be dealt with in accordance with the provisions of this clause 17.
17.2. If a Dispute arises, either party shall give to the other party written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. Upon service of the Dispute Notice the contract managers of the parties shall attempt in good faith using their respective reasonable endeavours to resolve the Dispute, and if they are unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to the chief executives of the parties (or persons of equivalent seniority) who shall attempt in good faith using their respective reasonable endeavours to resolve the Dispute. If the parties are unable to resolve the Dispute, either party may refer to the Dispute to mediation in accordance with the CEDR Model Mediation Procedure, but this shall not prevent the commencement of court proceedings, and either party may issue and commence court proceedings prior to or contemporaneously with the commencement of mediation. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate a mediation, a party must give notice in writing to the other party requesting a mediation. A copy of the request shall be sent to CEDR Solve.
17.3. Nothing in this clause shall prevent either party from instigating legal proceedings where an order for an injunction, disclosure or legal precedent is required, or in respect of a breach of the End User Terms in respect of the Software Services.
18. Non-solicitation
18.1. The Customer agrees that for the period of the Agreement and for a period of 12 months following its termination, it will not, directly or indirectly, solicit or entice away (or attempt to solicit or entice away), from the employment of Ciptex, any person employed or engaged by Ciptex who has been involved in the provision of the Services. If the Customer commits any breach of this clause, the Customer shall, on demand, pay to Ciptex a sum equal to one year’s basic salary or the annual fee that was payable by Ciptex to that employee, worker or independent contractor plus the recruitment costs incurred by Ciptex in replacing such person.
19. Changes to the Agreement
19.1. Ciptex reserves the right to make changes to these Terms and Conditions, or any other documents incorporated in the Agreement, including the Support Schedule, End User Terms and/or Data Processing Agreement, by giving at least 30 days’ notice to the Customer (which may include by email), unless such change is required as a result of any changes in Applicable Laws, in which case the required notice may be less than 30 days. Following receipt of such notice, the Customer’s continued use of or access to the Services, after the effective date of the change to the relevant terms (as set out in the notice), shall constitute the Customer’s acceptance to the updated terms. If the Customer does not agree to any such changes, it must notify Ciptex within 14 days of receipt of the notice. The parties will discuss the Customer’s objections, but if no agreement can be reached by the effective date of the changes (as set out in the notice), either party may terminate the Agreement by giving 14 days’ written notice to the other party.
20. General
20.1. Assignment. The Customer shall not, without Ciptex’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Ciptex may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
20.2. Entire agreement. The Agreement, and any other documents referred to in it, constitutes the entire agreement between the parties and supersedes, replaces and extinguishes any previous arrangement, understanding or agreement between them, whether written or oral, relating to its subject matter. Each party acknowledges that it has not been given, nor entered into the Agreement in reliance on, any warranty, statement, promise or representation other than as expressly set out in the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
20.3. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.4. Severance. If any provision or part-provision of the Agreement is found by any court to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20.5. Variation. Save as provided for in clause 19, or otherwise expressly permitted in the Agreement, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.6. No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish or imply any partnership or joint venture between any of the parties, constitute any party the agent or employee of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20.7. Third party rights. Except as expressly provided in the End User Terms, a person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
20.8. Further assurance. Each party shall (and shall use its reasonable endeavours to ensure that any necessary third party acting on its behalf or in its place shall), at the other party’s cost, execute all documents and do all acts and things as the other party reasonably requires for the purpose of giving the other party the full benefit of all the provisions of the Agreement.
21. Governing Law and Jurisdiction
21.1. The Agreement and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement, its subject matter or formation (including non-contractual disputes or claims).