TERMS & CONDITIONS
dated January 13, 2016
In this Agreement the following terms shall have the following meanings:
means employees, agents, consultants or independent contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Services online;
means that T Dispatch shall make the Services available to the Customer and Authorised Users during the Term of the Agreement via the Internet 99.5% in each calendar month, during Business Hours;
means Monday to Friday excluding any national holiday in UK;
means 09.00 – 19.00 local UK time, on a Business Day;
means any entities or persons to whom the Customer provides its services;
means any and all information in any form whatsoever relating to T Dispatch or the Customer, or the business, prospective business, computer software (both source code and object code) and IPR of T Dispatch or the Customer (as the case may be), including but not limited to; policyholder, payroll account, agent, customer, supplier, or contractor information; information regarding business plans (strategic and tactical) and operations (including performance); information regarding administrative, financial, or marketing activities; pricing information; personnel information; products and/or services offerings (including specifications and designs); or, processes (e.g., technical, logistical, and engineering); including compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of this Agreement or provision of the Services, and which a party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
means pure economic loss, special loss, losses incurred by any Client or other third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
means all information inputted by or on behalf of the Customer in the course of using the Services used to facilitate the Customer’s use of the Services;
means the entity or person named in the Order Form;
means a request under the Freedom of Information Act 2000 or similar legislation, including without limitation the Environmental Information Regulations 2004 or the Data Protection Act 1998 for a party to disclose Confidential Information, including for the avoidance of doubt a request to disclose whether or not such information is actually held by a party;
means the training materials and user manuals relating to the use of the Services, as well as any additional documentation that T Dispatch specifically creates for the Customer or otherwise provides to the Customer to assist in the correction of any issue with the Services;
means the date set out in the Order Form;
means feedback, innovations or suggestions created by Authorised Users or the Customer regarding the attributes, performance or features of the Services;
means the fees set out in the Order Form payable by the Customer to T Dispatch during the Term of the Agreement;
means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where T Dispatch ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data), failure of any mobile phone network or internet/broadband network, telephone service, Amazon servers, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;
means the fixed period set out in the Order Form;
means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
means any additional fees payable by the Customer during the Term of this Agreement set out in any subsequent order form signed by the parties and added to this Agreement after the Effective Date. The amount of such additional fees shall be calculated on a Time and Materials Basis unless stated otherwise in such order form;
means any additional services to be provided to the Customer during the Term of this Agreement set out in any subsequent order form signed by the parties and added to this Agreement after the Effective Date;
means the renewal period set out in the Order Form;
means the software and services (opted into by the Customer) and set out in the Order Form which consist of a combination of the following when included in the Order Form:
Dispatch System, App, Booking Engine Extra Feature;
means the T Dispatch service level agreement available at https://tdispatch.com/service-level-agreement, as amended from time to time;
means T Dispatch Limited;
“Terms and Conditions”
means these T Dispatch terms and conditions available at https://tdispatch.com/terms-and-conditions, as amended from time to time;
means the Initial Term together with any subsequent Renewal Terms;
“Time and Materials Basis”
means T Dispatch’s standard daily consultancy rates set out in the Order Form;
means all reasonable costs associated with any travel and subsistence expenses incurred by T Dispatch (or its employees, permitted subcontractors or agents) in performing its obligations under this Agreement.
2 Provision of the Services
2.1 The Customer engages T Dispatch and T Dispatch agrees to provide the Services and Documentation to the Customer in accordance with the terms of this Agreement from the Effective Date for the Term.
2.2 If the Customer wishes to purchase additional Services after the Effective Date, such Services shall be set out in one or more additional Order Forms, which will be signed by both parties and incorporated into this Agreement.
2.3 T Dispatch may suspend Customer or Authorised User access to the Services, or portion thereof, at any time, if in T Dispatch’s sole reasonable discretion, upon giving 24 hours notice if:
2.1.1 continued use of, or registration for the Services: (i) may adversely impact the integrity or security of the Services or the content of any other customer of T Dispatch, (ii) may subject T Dispatch, its affiliates, or any third party to liabilities; or (iii) may be fraudulent;
2.1.2 the Customer or End User breaches the terms of this Agreement.
During any period of suspension the Customer remains responsible for paying all Fees relating to the Services during the period of suspension.
3 Licence to use the Services
3.1 Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive, non-transferable licence to permit Authorised Users and Clients to use the Services (including any associated IPR and Confidential Information of T Dispatch) from the Effective Date for the Term for the Customer’s internal business operations. Such licence permits the Customer to make copies of software or other information necessary for the Customer to receive the Services via the Internet. No additional implied rights are granted beyond those specifically mentioned in this clause 3.1.
3.2 Notwithstanding the Customer’s statutory rights, no right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer.
3.3 Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software T Dispatch will provide access to any relevant source code or information provided that the Customer makes a written request identifying the relevant details of the Services with which operability is sought and the nature of the information needed. T Dispatch has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 Unless otherwise specified in this Agreement, the Services are provided and may only be used in conjunction with:
3.4.1 the Customer’s existing systems and applications in order to facilitate the Customer’s transactions with its Clients;
3.4.2 providing access to Services solely to Clients and Authorised Users; and
3.4.3 accessing and using the Documentation as necessary to enable use of the Services.
3.5 The Customer may not:
3.5.1. lease, loan, resell, assign, licence, distribute or otherwise permit access to the Services; or
3.5.2. use the Services to provide ancillary services related to the Services; or
3.5.3. permit access to or use of the Services by or on behalf of any third party, except as permitted in this Agreement;
and T Dispatch reserves the right to electronically monitor the Customer’s use of the Services.
4 Intellectual Property Rights
4.1 All IPR and title to the Services and Documentation (save to the extent these incorporate any Customer Data, Customer IPR or third party owned item) shall remain with T Dispatch and/or its licensors and subcontractors. No interest or ownership in the Services, Documentation, IPR or otherwise is transferred to the Customer under this Agreement.
4.2 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and the Customer’s pre-existing IPR and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and pre-existing IPR. T Dispatch is granted a royalty free, non-exclusive, non-transferable, revocable licence to use Customer Data and Customer’s pre-existing IPR for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Customer Data and pre-existing IPRs to the extent necessary to provide the Services.
4.3 The Customer is not allowed to remove any proprietary marks or copyright notices from the Services.
4.4 The Customer grants T Dispatch a non-exclusive, non-transferable revocable licence to display the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Services.
4.5 The Customer assigns all rights, title and interest in any Feedback to T Dispatch. If for any reason such assignment is ineffective, the Customer shall grant T Dispatch a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
4.6 T Dispatch may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
5 Term and Termination
5.1 This Agreement shall commence on the Effective Date for the Initial Term. At the expiry of the Initial Term, this Agreement will automatically renew for Renewal Terms and continue until either party terminates the Agreement by giving the other at least 30 days notice in writing prior to the start of a Renewal Term. Neither party may terminate the Agreement without cause during the Initial Term.
5.2 T Dispatch may terminate this Agreement or the provision of any Services with immediate effect at any time if:
5.2.1 the Customer has used or permitted use of the Services other than in accordance with this Agreement; or
5.2.2 if T Dispatch is prohibited under applicable law, or otherwise from providing the Services.
5.3 Either party may terminate this Agreement immediately at any time, with cause, if the other party:
5.3.1 ceases or threatens to cease or carry on business; or
5.3.2 is unable to pay its debts or enters into compulsory insolvency or voluntary liquidation; or
5.3.3 convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets;
5.3.4 or has an administrator, receiver, manager or similar official appointed; or
5.3.5 is affected by a similar event under the law of any other jurisdiction; or
5.3.6 a Force Majeure event lasts for more than 45 days.
5.4 Either party may terminate this Agreement for material breach of any term at any time, including four periods of the successive failure of T Dispatch to meet the availability level set out in the SLA, by giving the breaching party written notice. However, where the breach is capable of remedy, provided that the breach is specified and remedy of the breach is requested, the notice shall only be effective if the breaching party fails to remedy the breach within 30 days of receipt of the notice.
5.5 Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other. Clauses 3. (Licence), 4. (Intellectual Property Rights), 5. (Term and Termination), 8. (Fees and Invoicing), 9. (Payment Terms), 10. (Confidential Information), 11. (Data Protection) 13. (Liability), 14. (Indemnities), 16. (Assignment). 17. (Relationship between the Parties), 19. (Miscellaneous), 20. (Dispute Resolution) and 21. (Governing Law and Jurisdiction) shall survive the expiry or termination of this Agreement and shall remain in force and effect.
5.6 Upon termination of this Agreement:
5.6.1 T Dispatch shall immediately cease providing the Services to the Customer and all licences granted hereunder shall terminate;
5.6.2 the Customer shall promptly pay T Dispatch all unpaid Fee;
5.6.3 each party will promptly return to the other party, or certify the destruction of all Confidential Information of the other party held in connection with the performance of this Agreement or delivery and use of the Services;
5.6.4 T Dispatch will return all Customer Data stored in T Dispatch’s database. Such data shall be returned in its then current format, free of charge. If the Customer requires the data to be returned in a different format T Dispatch reserves the right to charge for this additional service on a Time and Materials Basis; and
5.6.5 provided that this Agreement has not been terminated due to the Customer’s breach of contract, T Dispatch will during the 90 day period before or following termination of the Agreement, provide reasonable assistance and information to enable the Customer Data to be transitioned to a new platform. Such assistance will be charged for on a Time and Materials basis.
6 Provision of Set-Up Services
6.1 From the Effective Date, T Dispatch shall implement the Services in accordance with any set-up plan agreed with the Customer.
6.2 The set-up period shall be extended by the length of any delay in the set-up process if:
6.2.1 the Customer changes its requirements after the set-up has begun; or
6.2.2 T Dispatch’s ability to comply with any set-up plan is impaired by any act or omission of the Customer or breach of this Agreement, which shall include but not be limited to the Customer failing to provide timely support and resources or having a lack of bandwidth or other technical requirements; or
6.2.3 the parties agree to extend the set-up period; or
6.2.4 a Force Majeure event occurs.
6.3 T Dispatch may increase and Fee relating to the set-up for any of the reasons set out in clause 6.2. The price increase shall be in proportion to the extension of time if the Fee is payable in advance. If the Fee is payable in instalments, then the price increase shall be on a Time and Materials Basis.
6.4 During the set-up period the Customer shall test the Services for defects and compliance with the Services to be provided. Such tests shall include testing the material software programme features. Any defects that are discovered shall be notified to T Dispatch in writing.
6.5 The Customer shall provide T Dispatch with all appropriate test data.
7 Third Party Providers
7.1 T Dispatch shall make all reasonable efforts to ensure that any interface or integration to a third party provider or system used by the Customer operates correctly. The Customer acknowledges that the successful operation of any interface or integration is dependent upon the technical set up of the third party systems, and the Customer agrees that:
7.1.1 T Dispatch cannot be held liable for any failures in the operation of the interface or integration;
7.1.2 the services offered on the third party system will be complete or available on the same terms as those set out in these Terms and Conditions;
And T Dispatch shall have no liability or obligation whatsoever to the Customer in relation to the content or use of, or correspondence with any third party website made available via use of the Services.
7.2 If an issue arises with regard to the effective operation of an interface or integration T Dispatch will use all reasonable efforts to resolve the issue at the earliest opportunity.
7.3 The Customer acknowledges that:
7.3.1 it is responsible for ensuring that it has paid and instructed the third party to co-operate with T Dispatch; and
7.3.2 T Dispatch has no liability whatsoever to the Customer for any problems with any interface or integration resulting from actions or omissions of the Customer or the third party.
8 Fees and Invoicing
8.1 T Dispatch shall invoice the Customer the Fees set out in the Order Form. All Fees shall be invoiced monthly in advance on the 1st day of the calendar month unless stated otherwise in the Order Form. Where Fees are calculated in accordance with use of the Services during the calendar month, the part of the Fee based upon usage will be invoiced in the following calendar month in addition to fixed monthly fees.
8.2 All Fees shall be invoiced and are payable by the Customer in the currency set out in the Order Form. All Fees exclude any Value Added Tax legally payable on the date of the invoice or any government taxes or duties, which shall be paid by the Customer in addition, where applicable.
8.3 Travel Fees, incidental costs and other expenses shall be invoiced in addition to the Fees in arrears, as and when they arise.
8.4 T Dispatch may increase the Fees or add new fees and charges to existing Services upon giving the Customer at least 30 days prior notice. Fees and charges for new services or new features will be effective from the date that T Dispatch publishes the updated fees and charges on its websites, unless T Dispatch expressly states otherwise in such online notices.
8.5 T Dispatch may on each anniversary of the Effective Date, increase the Fees in line with the then current annual rate of inflation in the country in which the Customer is located, as set out in the Order Form.
9 Payment Terms
9.1 The Customer shall pay T Dispatch the Fees for the provision of the Services under this Agreement using one of the payment methods supported by T Dispatch.
9.2 Unless stated otherwise in the Order Form, payment of all Fees is due immediately on the date of invoices, without setoff or counterclaim and without any deductions or withholding. If the Customer believes that any invoice is incorrect, it must notify T Dispatch in writing within 30 days of the date of the invoice.
9.3 Where payment of any Fee is not received on time, T Dispatch may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and T Dispatch shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
9.4 T Dispatch is entitled to charge interest on overdue Fees at the applicable statutory rate and reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
10 Confidential Information
10.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement. Each party must keep all Confidential Information of a disclosing party in strict confidence and not copy, reproduce, sell, transfer or otherwise dispose of, give, or disclose such Confidential Information to third parties except to the extent (if any) that the recipient of any Confidential Information is required by law or any regulatory, governmental or other authority with relevant powers to which either party is subject (except in relation to Disclosure Requests which shall be subject to clauses 10.5 and 10.6 below) to disclose the Confidential Information.
10.2 A receiving party may disclose the Confidential Information of the disclosing party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
10.3 Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to a disclosing party without delay upon completion of the Services or termination or expiry of this Agreement and certify in writing to the other party that it has complied with the requirements of this clause, provided that a 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, and to the extent reasonable to permit the party to keep evidence that it has performed its obligations under this Agreement.
10.4 The obligations of confidentiality under this Agreement do not extend to information that:
10.4.1 was in the other party’s lawful possession before the negotiations leading to this Agreement; or
10.4.2 is, or after the Effective Date, becomes publicly known other than through any act or omission of the receiving party; or
10.4.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.4.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.4.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.5 If either party receives a Disclosure Request such party shall:
10.5.1 promptly consult with and take into account any comments from the other party prior to making any disclosure; and
10.5.2 work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
10.6 The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this clause 10 and without limitation, all information falling within the definition of Confidential Information as set out in clause 1 of this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is:
10.6.1 Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or
10.6.2 a trade secret of the disclosing party; and
10.6.3 information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.
11 Data Protection
11.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
11.2 To the extent that personal data is processed using the Services, the parties acknowledge that T Dispatch is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. T Dispatch agrees that it will only process personal data on behalf of, and in the name of, the Customer.
11.3 The Customer shall ensure that the personal data, which it supplies or discloses to T Dispatch, has been obtained fairly and lawfully and that it will obtain all necessary consents from persons whose data is being processed and registrations with authorities to permit T Dispatch to transfer personal data to third parties pursuant to its obligations under this Agreement.
11.4 T Dispatch confirms that it:
11.4.1 will only process data in accordance with the instructions of the data controller; and
11.4.2 has taken, as well as its subcontractors, licensors and hosts, sufficient and appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to personal data, having regard to the state of technological development and cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected.
11.5 If a third party alleges infringement of its data protection rights, T Dispatch shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
12 Representations and Warranties
12.1 Each party warrants and represents that:
12.1.1 it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder;
12.1.2 this Agreement, when executed and delivered shall be a valid and binding obligation of it enforceable in accordance with its terms;
12.1.3 the execution, delivery and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; and
12.1.4 it shall respect all applicable federal, state, local, international or other laws and regulations, governmental orders and court orders, applicable to the performance of its obligations under this Agreement.
12.2 T Dispatch warrants and represents to the Customer that:
12.2.1 it has the right to licence the Services;
12.2.2 the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice;
12.2.3 the Services will be provided in accordance with the terms of the SLA;
12.2.4 the Services will operate to provide in all material respects the facilities and functions implemented by T Dispatch as set out in the Order Form.
If there is a breach of the warranty given in clause 12.2.4 above, T Dispatch shall use reasonable commercial endeavours, to correct any material defect or to replace the defective software. Notwithstanding the aforesaid, T Dispatch shall only be obliged to remedy any material defect if:
12.2.5 the Customer notifies T Dispatch in writing immediately upon discovering the defect; and
12.2.6 following T Dispatch’s examination of the software, it is established that such a defect exists.
12.3 The warranties in clause 12.2 shall not cover deficiencies or damages relating to:
12.3.1 any third party components not provided by T Dispatch; or
12.3.2 any third party provided connectivity necessary for the provision or use of the Services; or
12.3.3 compliance with third party software or products, non-T Dispatch programmes or data used in combination with the Services except as specifically set out in this Agreement, or
12.3.4 a failure of the Services caused by the use or operation of the Services by the Customer with an application or in an environment other than that set out in the Agreement; or
12.3.5 modifications made to the Services not carried out by T Dispatch.
12.4 No warranty is made regarding the results the Customer can achieve from using the Services or that the Services will operate uninterrupted or error free.
12.5 The Customer warrants and represents that:
12.5.1 it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement;
12.5.2 it and the Authorised Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement. In particular the Customer and Authorised Users shall treat any identification, password or username or other security device for use of the Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to T Dispatch in writing. The Customer shall be liable for any breach of this Agreement by an Authorised Users;
12.5.3 it shall ensure that its network and systems comply with the relevant specification provided by T Dispatch from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer’s systems to T Dispatch’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.
12.6 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.
13.1 Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission, wilful misconduct or any other liability which cannot be excluded by applicable law.
13.2 Neither party shall be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
13.3 Neither party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
13.4 Subject to clauses 13.1 to 13.3 inclusive the total liability of T Dispatch to the Customer in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement or based upon any claim for indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by the Customer to T Dispatch during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.
13.5 The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Authorised Users or Clients who access the Services as if such acts, omissions or negligence had been committed by the Customer itself.
13.6 The Customer shall not raise any claim under this Agreement more than 1 year after:
13.6.1 the discovery of the circumstances giving rise to a claim; or
13.6.2 the effective date of termination or expiry of this Agreement.
13.7 The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and has not relied on any representation made by the other, their employees or agents.
14.1 T Dispatch shall at its own expense, defend or at its own option settle any claim brought against the Customer by a third party on the basis of an infringement of any IPR by the Services excluding any claim deriving from any Customer provided item) and pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that:
14.1.1 the Customer notifies T Dispatch promptly of each such claim;
14.1.2 T Dispatch is given sole control of the defence and/or settlement; and
14.1.3 the Customer fully co-operates and provides all reasonable assistance to T Dispatch in the defence or settlement.
14.2 If all or part of the Services becomes, or in the opinion of T Dispatch may become, the subject of a claim or suit of infringement, T Dispatch shall at its own expense and sole discretion:
14.2.1 procure for the Customer the right to continue to use the Services or the affected part thereof;
14.2.2 replace the Services or affected part with another suitable non-infringing service or software;
14.2.3 modify the Services or affected part to make the same non-infringing;
14.2.4 or terminate this Agreement forthwith on giving notice to the Customer.
14.3 T Dispatch shall have no obligations under clauses 14.1 and 14.2 above to the extent that a claim is based on:
14.3.1 A modification of the Services by anyone other than T Dispatch;
14.3.2 the combination, operation or use of the Services with other services or software not provided by T Dispatch if such infringement would have been avoided in the absence of such combination, operation or use; or
14.3.3 the use of the Services in any manner inconsistent with this Agreement; or
14.3.4 the negligence or wilful misconduct of the Customer.
14.4 Clauses 14.1 to 14.3 state the Customer’s sole and exclusive rights and remedies and T Dispatch’s entire obligations and liability for any claims made under these clauses.
14.5 The Customer shall defend, indemnify and hold T Dispatch and its employees, sub-contractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from:
14.5.1 any claimed infringement or violation by the Customer, an Authorised User or a Client of any IPR with respect to use of the Services outside of the scope of this Agreement; or
14.5.2 use by T Dispatch of any Customer Data or Customer or Client provided item, in particular storage or publication on the Internet of any Illegal Content; or
14.5.3 any access to or use of the Services by an Authorised User, a Client or a third party;
14.5.4 breaches of data protection law or regulations resulting from T Dispatch processing data on behalf of and in accordance with the instructions of the Customer, an Authorised User or a Client; and
14.5.5 any breach of this Agreement by an Authorised User or a Client. Furthermore, T Dispatch shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet and breaches of third party rights from continuing.
14.6 Subject to clauses 14.1 to 14.5 inclusive, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceedings or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from and failure by the first party to comply with the terms of this Agreement or otherwise. This indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
15.1 T Dispatch shall permit the Customer to specify which Authorised Users or Clients may access the Services through its standard application security options.
15.2 The Customer, Authorised Users and Clients must ensure that each password is only used by the user to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify T Dispatch if the Customer becomes aware of any unauthorised use of the Customer’s account, the Customer’s passwords or breach of security known to the Customer. T Dispatch shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
16.1 No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however T Dispatch shall be entitled to assign the Agreement to any company in T Dispatch’s group of companies.
17 Relationship between the Parties
17.1 T Dispatch and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
18.1 The Customer shall provide a designated application support contact who will be responsible for and have sufficient information to respond to support questions.
18.2 The Customer shall provide a designated billing contact with all relevant contact information to respond to billing and payment questions regarding the Services.
19.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
19.2 Except with respect to the Customer’s obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under this Agreement due to Force Majeure, then subject to the right to terminate under clause 5.3.6, the breaching party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
19.4 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
19.5 All amendments to, or notices to be sent under the Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post to a party at the address given for that party in the Order Form. Notwithstanding the aforesaid, T Dispatch may change or modify the terms of this Agreement upon giving the Customer 30 days notice via email to the email address used by the Customer upon ordering the Services. Such email notice shall be deemed received by the Customer, 1 hour after despatch. All changes to this Agreement shall be deemed to have been accepted by the Customer, unless the Customer sends written notice to T Dispatch of its intention to terminate the Agreement, which must be received prior to the expiry of the 30 day notice period.
19.6 Neither party shall make any public statement, press release or other announcement relating to the terms or existence of this Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid T Dispatch may use the Customer’s name and trade marks (logo only) to list the Customer as a client of T Dispatch on its website and in other marketing materials and information.
19.7 Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.8 No failure or delay of either party to enforce any right under this Agreement will be deemed to constitute a waiver of such right.
20 Dispute Resolution
20.1 The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and any breach of it.
20.2 If any such dispute cannot be settled amicably through ordinary negotiations of the sales directors of each party, the dispute shall be escalated in writing to the chief technology officer of T Dispatch and the chief financial officer of the Customer who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within 14 days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with clause 21 below.
21 Governing Law and Jurisdiction
21.1 This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.