Terms and conditions
AQUARIUM SOFTWARE LIMITED TERMS AND CONDITIONS
AQUARIUM SOFTWARE LIMITED TERMS AND CONDITIONS
Aquarium Software Limited is a company incorporated in England and Wales with registration number 05802151 and whose registered office is at Poplar House, 126a Ashley Road, Hale, Cheshire WA14 2UN (“Aquarium”).
This Agreement shall commence on the Commencement Date and shall continue until terminated in accordance with the provisions of Clause 23 (Termination), or for such other term as the Parties may agree in writing.
Each Party shall nominate a person with sufficient expertise to act as its representative in relation to this Agreement (“Representative”). The Aquarium Representative and the Customer Representative shall meet remotely at such times as may be agreed between the parties, but in any event at least quarterly, for the purpose reviewing the Services then provided by Aquarium.
3.1 Aquarium shall provide the Services to the Customer with reasonable skill and care; and in accordance with: (i) the provisions of this Agreement; and (ii) Good Industry Practice.
3.2 Unless otherwise agreed, Aquarium shall provide the Services from the Aquarium Premises or such other location as it may, in its sole discretion, determine.
3.3 Aquarium shall use reasonable endeavours to provide the Services in accordance with any date or time specified for such performance by the parties. Any such dates shall be estimates only and time shall not be of the essence in this regard. Where no date or time is specified, Aquarium shall provide such Services within a reasonable period of time.
3.4 Aquarium holds, and shall maintain, the ISO 27001 certification.
DEVELOPMENT AND CONFIGURATION SERVICES
4.1 Unless otherwise agreed between the parties in writing, the provisions of this clause 4 shall apply to all Development and Configuration Services.
4.2 Aquarium shall provide, develop, make the modifications to, deliver and install (as the case may be) the Aquarium Standard Software, Aquarium Modified Software, Bespoke Software and Modified Third Party Software as agreed by the parties and documented in a separate SOW.
4.3 The Aquarium Software is a tool to aid the Customer, but the Customer should satisfy itself of the accuracy of any figures calculated using the Aquarium Software and the accuracy of any forms or documents generated using the Aquarium Software. The Customer acknowledges and agrees that it is responsible for providing all processes and documents stored within the Aquarium Software and that Aquarium shall have no liability in connection with the same. The Customer is responsible for ensuring that any forms and/or precedent documents comprised within the Aquarium Software are suitable for each purpose for which the Customer may use them. Aquarium will not be under any liability if the Aquarium Software is used in a manner in breach of this Agreement.
4.5 Acceptance Tests shall be carried out in accordance with the process, dates and timing as set out in a separate SOW, or in accordance with such other process as may be agreed in writing between the parties.
4.6 The Intellectual Property Rights in the Aquarium Software (other than the Open-Source Software and Standard Third Party Software, if any) are, and shall remain, the property of Aquarium, and Aquarium reserves the right to grant a licence to use such Aquarium Software to any other party or parties.
4.7 Aquarium shall provide the Open-Source Software and the Standard Third Party Software (if any) to the Customer under the standard licence terms provided by the relevant third party, copies of which shall be provided to the Customer upon request, and the Customer agrees to be bound to the relevant third parties by such licence terms.
4.8 The Licensed Software and the Documentation are the property of Aquarium (or the appropriate third-party rights-owner(s)) and the Customer acquires no rights in or to the Licensed Software or the Documentation other than as expressly granted in this Agreement or as otherwise agreed between the parties in writing.
4.9 The Customer shall do, and execute and arrange for the doing and executing of, each necessary act, document or thing that Aquarium may consider necessary or desirable to perfect the right, title and interest of Aquarium in and to the Intellectual Property Rights in the Aquarium Modified Software, the Bespoke Software, the Modified Third Party Software and the Tools.
4.10 The Customer shall use reasonable endeavours to prevent any infringement of Aquarium’s Intellectual Property Rights in the Licensed Software and shall promptly report to Aquarium any such infringement that comes to its attention. In particular, the Customer shall:
(a) ensure that each Authorised User is made aware that the Licensed Software is proprietary to Aquarium and that it may only be used and copied in accordance with the provisions of the Agreement or as otherwise expressly agreed between the Parties in writing; and
(b) not permit third parties to have access to the Licensed Software without the prior written consent of Aquarium who may require that such party executes a written confidentiality agreement before being given access to the Licensed Software.
Aquarium Software Licence and Documentation
4.11 Unless otherwise expressly agreed in writing, Aquarium grants, subject to the terms of this Agreement, to the Customer the non-exclusive, non-transferable right to use the Licensed Software and the Documentation for the Permitted Use.
4.12 The Licensed Software may only be used by Authorised Users, and at such premises or sites as may be agreed by Aquarium from time to time.
4.13 The Customer shall comply with the Third Party Licences and shall indemnify Aquarium against any loss, damage or liability which it may suffer or incur as a result of the breach by the Customer of such terms howsoever arising.
4.14 The Customer may not make adaptations or variations of the Licensed Software without the prior written consent of Aquarium.
MAINTENANCE AND TECHNICAL SUPPORT SERVICES
5.1 Unless otherwise agreed between the parties in writing, the provisions of this clause 5 shall apply to all Maintenance and Technical Support Services.
5.2 The parties shall agree in writing the Maintenance and Technical Support Services to be provided by Aquarium to the Customer.
5.3 The Customer shall designate Customer support representatives (“CSRs”) who shall be authorised to contact Aquarium for Technical Support Services.
5.4 Aquarium shall provide support engineers (“SSEs”) to handle support calls from the Customer's CSRs and such SSEs shall be suitably trained and experienced in the support and maintenance of the Aquarium Software.
5.5 Aquarium shall accept incident submittal from CSRs using the Aquarium Support Call Centre system on each Business Day between 09:00 and 17:00 London time.
5.6 Aquarium shall use reasonable endeavours to process valid support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer, according to priority.
5.7 Aquarium shall have no obligation to provide the Maintenance and Technical Support Services where faults arise from:
(a) misuse, incorrect use of or damage to the Aquarium Software from whatever cause (other than an act or omission by Aquarium, including failure or fluctuation of electrical power;
(b) failure to maintain the necessary environmental conditions for use of the Aquarium Software;
(c) use of the Aquarium Software in combination with any equipment or software not provided by Aquarium or not designated by Aquarium for use with any modification forming part of the Aquarium Software, or any fault in such equipment or software;
(d) relocation or installation of the Aquarium Software by any person other than Aquarium or a person acting under Aquarium’s instructions;
(e) any breach by the Customer of its obligations under the howsoever arising or having the Aquarium Software maintained by a third party;
(f) operator error; or
(g) any modification not authorised by Aquarium.
5.8 The Customer shall ensure that appropriate environmental conditions are maintained for the Aquarium Software and shall take all reasonable steps to ensure that the Aquarium Software is operated in a proper manner.
5.9 Risk in, and title to, any media bearing any Licensed Software or Documentation or other information that may from time to time be provided by Aquarium to the Customer for the provision of Maintenance and Technical Support Services shall pass to the Customer on acceptance by the Customer.
5.10 Where the Aquarium Software or any other Customer software is hosted by Aquarium in Aquarium’s multi-tenanted database, the Customer will unless otherwise expressly agreed in writing, receive Patches and Feature Updates from time to time as part of the Maintenance and Technical Support Services at no additional cost to the Customer. Where the Customer does not use Aquarium’s Hosting Services to host any Aquarium Software then Aquarium reserves the right to charge additional fees for the provision of Patches and Feature Updates from time to time.
6.1 Unless otherwise agreed between the parties in writing, the provisions of this clause 6 shall apply to all Hosting Services.
6.2 The set-up phase of the Hosting Services shall include the services provided by Aquarium or its contracted third parties to design, install, configure and test the Hosting Services, as well as the hosting facility and internet connectivity.
6.3 Aquarium shall procure, install and configure the hosting equipment to provide access to the Aquarium Software. This may include virtual, or the rack mounting of servers and related equipment, installation of system and database software components, configuration of clustering and cross-connects, installation of the Aquarium Software.
6.4 The hosting equipment may be installed in a rack-mounted configuration inside a professional hosting facility designed for such use. The facility shall be equipped with access security, climate control, fire suppression, and managed power supply with UPS and generator back-up.
6.5 Aquarium shall provide internet connectivity through an internet service provider at the hosting facility. The connectivity shall include multiple, diversely routed high-speed connections, a firewall for security and a load balancer for traffic management and speed optimisation. The Customer shall, and shall ensure that its Authorised Users shall, make their own arrangements for internet access in order to access the Aquarium Software.
6.6 Aquarium shall supply fixed bandwidth connectivity services. The connectivity shall include multiple connections and a network operations centre that monitors servers, the network platform and internet access.
6.7 The continuing Hosting Services provided by Aquarium or its contracted third parties, which allow for availability of the Aquarium Software, include internet connectivity (as detailed in clause 6.5 above), load distribution management, security services, monitoring, back-up, release management and change control, and administration services.
6.8 Aquarium shall provide load-balancing services to distribute load and redundancy across application servers.
6.9 Aquarium shall provide, 24 hours a day and seven days a week, monitoring of the computing, operating and networking infrastructure to detect and correct abnormalities. This includes environmental monitoring, network monitoring, load-balancing monitoring, web server and database monitoring, firewall monitoring, and intrusion detection.
6.10 Aquarium shall develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include at least weekly full back-ups and daily incremental back-ups. In the event of data loss, Aquarium shall provide recovery services to try to restore the most recent back-up.
6.11 Aquarium shall provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by Aquarium to maintain the Hosting Services.
CUSTOMER OBLIGATIONS AND CUSTOMER DEPENDENCIES
7.1 The Customer shall perform its obligations under this Agreement in accordance with all Applicable Law.
7.2 The Customer shall: (i) provide Aquarium with access to its premises and to the Customer Equipment to the extent necessary for the performance by Aquarium of the Services; (ii) co-operate with Aquarium to such extent as is reasonably necessary to enable Aquarium to perform its obligations under this Agreement; (iii) make available to Aquarium staff who are familiar with the organisation, operations and business practices of the Customer and/or the Customer Equipment to the extent reasonably necessary for the performance of Aquarium’s obligations under this Agreement; and (iv) comply with any other obligations of the Customer as agreed between the parties from time to time, (together, the "Customer Dependencies").
7.3 If a failure by Aquarium to perform any of its obligations under this Agreement or any relevant SOW arises as a result of a failure by the Customer to perform any of the Customer Dependencies then Aquarium will not be liable for such failure to perform and will not be treated as being in breach of this Agreement or the relevant SOW.
COMPLIANCE WITH LAWS
Aquarium shall provide the Services and perform its other obligations under this Agreement in accordance with all Applicable Law.
ANTI-BRIBERY AND HUMAN RIGHTS LAWS
9.1 Aquarium shall not act in such a way as to give rise to a breach by it of any Applicable Law related to bribery and/or corruption, including the Bribery Act 2010.
9.2 Aquarium shall not offer, promise, pay, give or authorise (tacitly or otherwise) any financial or other advantage, on behalf of the Customer: (i) to any person in order to induce that person improperly to perform a function or activity in connection with a business or organisation, a person’s employment, or a public function; or (ii) to any Official to influence that Official in connection with obtaining business or a business advantage for the Customer.
9.3 Aquarium shall, at all times, maintain adequate procedures designed to prevent any persons who perform services for them, or on their behalf, from undertaking the activities described in clause 9.2.
9.4 In this clause 9, "Official" means: (a) an individual who holds a legislative, administrative, or judicial position of any kind of any country or territory, or any subdivision of any country or territory; (b) any person who performs public functions in any branch of any national, local or municipal government or who exercises a public function for any public agency or public enterprise; and (c) an official or agent of a public international organisation, such as the UN or the World Bank.
9.5 Aquarium shall not act, or omit to act, in such a way as to give rise to a breach by it of any Applicable Law relating to internationally recognised human rights, including but not limited to (i) the Modern Slavery Act 2015; (ii) legislation against child labour; and (iii) legislation against human trafficking.
10.1 For the purposes of this clause 10, "data controller", "data processor", "data subject", "personal data", "processing", and "appropriate technical and organisational measures" shall be interpreted in accordance with the General Data Protection Regulation (or other applicable Data Protection Legislation).
10.2 With respect to the Parties' rights and obligations under this Agreement, the Parties agree that the Customer is the data controller and that Aquarium is the data processor in relation to all personal data that Aquarium processes for the Customer in the course of providing the Services under this Agreement or any relevant SOW (“Customer Personal Data”).
10.3 Notwithstanding anything to the contrary in this Agreement or any relevant SOW, in respect of Customer Personal Data, and subject always to clause 10.5, Aquarium shall:
(a) process the Customer Personal Data only in accordance with written instructions from the Customer and not for Aquarium’s own purposes or any marketing purposes. If Aquarium is required to process the Customer Personal Data for any other purpose by any Applicable Law to which Aquarium is subject, Aquarium will inform the Customer of this legal requirement prior to the processing of the Customer Personal Data, unless that law prohibits this on important grounds of public interest. If the Customer requires Aquarium to make any changes to the way Aquarium processes Customer Personal Data in the course of providing the relevant Services (whether due to a change in Applicable Law or otherwise) the parties shall agree such changes in writing and the provisions of clause 15 shall apply;
(b) notify the Customer without delay if, in Aquarium’s opinion, an instruction for the processing of Customer Personal Data given by the Customer infringes applicable Data Protection Legislation;
(c) taking into account the nature of the processing, assist the Customer, using appropriate technical measures and in so far as it is possible, in fulfilling the Customer’s obligations to respond to requests from data subjects exercising their rights in relation to any Customer Personal Data;
(d) maintain written records of all categories of processing activities carried out on behalf of the Customer in connection with Customer Personal Data, containing the information prescribed in the applicable Data Protection Legislation;
(e) implement and maintain appropriate technical and organisational measures to protect the Customer Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure;
(f) not give access to or transfer any Customer Personal Data to any third party other than Aquarium Affiliates and Aquarium Sub-Contractors without the prior written consent of the Customer. Where the Customer does provide such consent, Aquarium shall ensure the reliability and competence of such third party who may have access to the personal data processed under this Agreement;
(g) take reasonable steps to ensure the reliability and competence of any Aquarium Personnel who have access to the Customer Personal Data;
(h) ensure that all Aquarium Personnel required to access the Customer Personal Data are informed of and bound by the confidential nature of the Customer Personal Data and comply with the obligations set out in this clause 10;
(i) ensure that none of the Aquarium Personnel publish, disclose or divulge any of the Customer Personal Data to any third party other than in accordance with clause 10.3.6 or as directed in writing by the Customer;
(j) promptly refer to the Customer any requests, notices, complaints or other communication relating to the Customer Personal Data from data subjects, supervisory authorities, any other law enforcement authority or any other third parties, to the extent permitted by Applicable Law, for the Customer to resolve;
(k) provide the Customer with all reasonable co-operation and assistance in relation to any request, notice, complaint or other communication referred to in clause 10.3.10;
(l) not retain any of the Customer Personal Data for longer than is necessary to perform its obligations under this Agreement or a relevant SOW; and
(m) where the Customer is located in the European Union, not process any Customer Personal Data in a location outside the European Economic Area, except with the prior written consent of the Customer and on the documented instructions of the Customer.
10.4 If Aquarium becomes aware of a Security Breach, Aquarium shall without delay notify the Customer.
10.5 If such Security Breach occurs as a consequence of a breach by Aquarium of its obligations under this Agreement, it shall without delay provide the Customer with: (i) a detailed description of the Security Breach; (ii) a detailed description of the type of data that was the subject of the Security Breach; and (iii) the identity of each affected person, as soon as such information can be collected or otherwise becomes available (as well as periodic updates to this information and any other information the Customer may reasonably request relating to the Security Breach), and take action without delay and continue to take such on-going action as is necessary to investigate the Security Breach and to identify, prevent and mitigate the effects of the Security Breach.
10.6 If such Security Breach does not occur as a consequence of a breach by Aquarium of its obligations under this Agreement, it shall provide such reasonable assistance to the Customer as the Customer may require in order to obtain: (i) a detailed description of the Security Breach; (ii) a detailed description of the type of data that was the subject of the Security Breach; and (iii) the identity of each affected person; and shall provide such reasonable assistance as the Customer may require in order to investigate the Security Breach and to identify, prevent and mitigate the effects of the Security Breach, in each case at the Customer’s cost and expense and based on Aquarium’s Standard Rates.
10.7 Where its performance of, and compliance with, clauses 10.3.3, 10.3.4, 10.3.11 and 10.3.14 results in additional time and/or cost to Aquarium, Aquarium reserves the right to charge the Customer for such additional time and/or costs at Aquarium’s Standard Rates.
11.1 As between the Parties, all Customer Data (including all modifications thereof) will be and remain the property of the Customer. Aquarium shall not:
(a) store, copy, disclose or use Customer Data except as necessary for the performance of its obligations under this Agreement or as otherwise expressly authorised in writing by the Customer, or as may be required by law;
(b) possess or assert any liens or other rights over, or sell, assign, lease or otherwise dispose of, or exploit Customer Data, without the Customer's prior written consent;
(c) delete or remove any proprietary notices contained within or relating to Customer Data.
11.2 Aquarium shall establish and maintain administrative, technical and physical safeguards designed to: (i) ensure the security and confidentiality of any Customer Data, (ii) protect against any threats or hazards to the security or integrity of any Customer Data, and (iii) protect against unauthorised access to, or use, or the destruction, loss or alteration of any Customer Data that would result in harm to the Customer.
11.3 Aquarium shall procure that the Aquarium Personnel do not attempt to access, or allow access to, Customer Data to which they are not entitled, or that is not required for the performance of the Services.
11.4 Aquarium shall perform secure back-ups of all Customer Data.
11.5 Aquarium shall ensure that any system on which Aquarium holds any Customer Data, including back-up data, is a secure system that complies with the requirements referred to in clause 11.2.
11.6 If Aquarium is providing Hosting Services to a Customer, then Aquarium shall notify the Customer without delay if it at any time suspects or has reason to believe that any Customer Data has or may become corrupted, lost or degraded in any way.
12.1 In respect of any Confidential Information belonging to or received from one of the Parties (the "Disclosing Party"), the other Party (the "Receiving Party") shall:
(a) keep all such Confidential Information confidential using at least the same degree of care (but no less than a reasonable degree of care) to safeguard, and to prevent the disclosure to third parties of, such Confidential Information as it applies with respect to the protection of its own information of a similar nature;
(b) not disclose such Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with this clause 12; and
(c) only use or make copies of such Confidential Information in connection with and to the extent necessary for the purposes of this Agreement.
12.2 Aquarium shall be entitled to disclose Confidential Information of the Customer to Aquarium Affiliates, Aquarium Personnel and Aquarium Sub-Contractors who are directly or indirectly involved in the provision of the Services and for whom such access is reasonably necessary for the proper performance of Aquarium’s obligations under this Agreement or the relevant SOW, provided that Aquarium:
(a) informs such Aquarium Affiliates, Aquarium Personnel and Aquarium Sub-Contractors that the Confidential Information is confidential;
(b) ensures that such Aquarium Affiliates, Aquarium Personnel and Aquarium Sub-Contractors use the Confidential Information solely in relation to the performance of the Aquarium’s obligations under this Agreement; and
(c) shall be responsible for all acts and omissions of such Aquarium Affiliates, Aquarium Personnel and Aquarium Sub-Contractors as though they were its own acts or omissions under this Agreement and any relevant SOW.
12.3 The Receiving Party may disclose Confidential Information to any Regulatory Body or other third party if it is required to do so by any Applicable Law, provided that: (i) the Receiving Party shall (provided that it is lawful to do so) notify the Disclosing Party in writing as soon as practicable before the disclosure; (ii) the Parties use reasonable endeavours to consult with each other with a view to agreeing the timing, manner and extent of the disclosure; and (ii) where possible, the Receiving Party shall use reasonable endeavours to obtain written confidentiality undertakings in its favour from the third party before the disclosure.
If the Receiving Party is unable to inform the Disclosing Party before the Confidential Information is disclosed, it shall (provided that it is lawful to do so) inform the Disclosing Party without delay afterwards in writing of the circumstances of the disclosure and the Confidential Information which has been disclosed.
12.4 Each Party shall (without limiting either Party’s rights or remedies under this Agreement, any relevant SOW or at law) without delay notify the other Party of any unauthorised possession or use of the other Party’s Confidential Information by any third party of which it becomes aware.
12.5 This clause 12 shall not apply to Confidential Information: (i) to the extent it is or becomes generally available to the public other than through a breach of this Agreement; (ii) which the Receiving Party can show was lawfully in the possession of the Receiving Party prior to disclosure and which had not previously been obtained from the Disclosing Party or another person known by the Receiving Party to be under an obligation of confidence to the Disclosing Party; (iii) which subsequently comes into the possession of the Receiving Party from a third party who does not owe the Disclosing Party an obligation of confidence in relation to it; or (iv) which the Receiving Party can show was independently developed by or on behalf of the Receiving Party.
12.6 Each Party shall, as soon as reasonably practicable, return or destroy (as directed by the other Party) any Confidential Information of the other Party (and shall certify that such items have been returned or destroyed (as applicable)) upon any of the following: (i) at the other Party’s written request; or (ii) upon the termination or expiration of this Agreement, provided that nothing in this clause 12.6 shall require either Party to destroy or return any Confidential Information which it is required to retain by Applicable Law.
12.7 Where Customer Confidential Information is held by Aquarium in connection with the provision by Aquarium of data storage services, the return of such Customer Confidential Information may be subject to additional charges.
12.8 The Parties’ obligations under this clause 12 shall continue in force notwithstanding the termination or expiry of this Agreement.
12.9 Each Party acknowledges that damages alone would not be an adequate remedy in the event of a breach by the other Party of the provisions of this clause 12. Accordingly, it is agreed that either Party shall be entitled to seek an injunction or other interim remedy for any threatened or actual breach of this clause 12, without prejudice to any other rights and remedies which that Party may have.
12.10 No Party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning the existence, subject matter or terms of this Agreement, or the relationship between the Parties, without the prior written consent of the other Party.
12.11 The Customer shall not use the Aquarium name in any way, including without limitation in any press release, on the Customer’s web site or in any case studies, without the prior written consent of Aquarium.
FEES AND INVOICING
13.1 The Fees payable by the Customer in consideration of the provision of the Services shall be set out in an SOW or a separate document agreed between the Parties. Fees shall be calculated and paid in pounds sterling.
13.2 Fees for Services which are not specified in either this Agreement or any SOW shall be charged at Aquarium’s Standard Rates.
13.3 Unless expressly agreed otherwise in writing, all sums due to Aquarium under this Agreement or any SOW are exclusive of value added tax, goods and services tax and any similar sales or excise tax ("Sales Tax"), if any. Sales Tax shall be charged in accordance with the relevant regulations in force at the relevant time and shall be paid by the Customer against receipt from Aquarium of a valid tax invoice.
13.4 Aquarium reserves the right to change the Fees upon 90 days’ notice to the Customer, provided that such change shall occur no more frequently than once per annum. Aquarium will notify the Customer of the Fee change in writing.
14.1 Subject to clause 14.3, the Customer shall pay each invoice by no later than the date which is 30 days after the date the Customer received the relevant invoice.
14.2 If the Customer fails to make payment of any Fees in accordance with clause 14.1, then Aquarium shall be entitled to charge interest on the overdue amount at a rate of 2% per annum above the base rate of the Bank of England from time to time in force from the date on which such amount fell due until payment (whether before or after judgment).
In the event that the Customer wishes to change or add any Services, it shall notify Aquarium of its proposed changes and the Parties shall agree in writing the changes to be made and the process to be followed for the implementation of such changes (including any change to the fees).
INTELLECTUAL PROPERTY RIGHTS
16.1 The Customer agrees and acknowledges that all Intellectual Property Rights in the Services (including without limitation the Aquarium Software, the Tools, the name "Aquarium" and any other names used by Aquarium in relation to the Services) are and remain the exclusive property of Aquarium and its licensors. Except as expressly stated in the Agreement or any SOW neither the Agreement or any SOW grants the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Aquarium Software, Tools, the name Aquarium, the Services or any related documentation.
16.2 The Customer shall not:
(a) store, distribute or transmit any Malicious Software, or any material through the Aquarium Software or Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(b) make copies of any software comprised in the Services other than as expressly permitted Aquarium in writing, or attempt to access the Services in any way other than that provided by Aquarium;
(c) attempt to reverse compile, disassemble, decode, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Aquarium Software, except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the Parties;
(d) use the Services on behalf of, or give access to the Services to, any third party; or
(e) attempt or procure a third party to reproduce the functionality of the Services where such Services are being provided by Aquarium.
17.1 Aquarium warrants that (i) it has the ability and capacity to provide the Services; and (ii) it will perform its obligations under this Agreement in a manner that does not infringe any third party Intellectual Property Rights.
17.2 The Customer acknowledges that it may be required to from time to time maintain certain third party consents, licences, permissions, rights and authorisations required in order for Aquarium to provide the Services. In the event that the Customer fails to do so, and such failure has an adverse effect on the Services, Aquarium shall not be liable for such adverse effect.
17.3 Aquarium warrants that where it provides Hosting Services and/or Maintenance and Technical Support Services: (i) it will use up-to-date, industry accepted anti-virus software to check for and prevent any Malicious Software being introduced into the Aquarium Software and the Customer System; and (ii) it will co-operate with the Customer to reduce the effect of any Malicious Software found in the Aquarium Software and assist the Customer to mitigate any costs (including loss of operational efficiency and loss or corruption of Customer Data) and to restore the Hosting Services to their desired operating efficiency.
18.1 The Customer shall not in any circumstances export, whether directly or indirectly, any technical data acquired from Aquarium under this Agreement (or any products, including software, including any such data) in breach of any Applicable Laws (“Export Control Laws”), including for this purpose United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
18.2 The Customer undertakes contractually to oblige any party to whom it discloses or transfers such data or products to make an undertaking to it in similar terms to the one set out above and, if requested by Aquarium, to provide Aquarium with any reasonable assistance to enable Aquarium to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
19.1 The following provisions set out the entire liability of Aquarium (including for the avoidance of doubt any liability for the acts and omissions of the Aquarium Personnel and/or Aquarium Sub-Contractors) to the Customer in respect of (i) any breach of its contractual obligations arising under this Agreement; and (ii) any misrepresentation, misstatement or tortious act or omission including negligence arising under or in connection with this Agreement.
19.2 Any act or omission on the part of Aquarium or the Aquarium Personnel and/or Aquarium Sub-Contractors falling within clause 19.1 shall for the purposes of this clause 19 be known as an "Event of Default".
19.3 Nothing in this Agreement shall limit or exclude the liability of Aquarium: (i) for death or personal injury caused by negligence; (ii) for fraudulent misrepresentation or fraud; (iii) a breach of any obligation implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (iv) any matter for it would be unlawful for Aquarium to exclude liability.
19.4 Subject to clause 19.3, the total liability of Aquarium in respect of all Events of Default shall be limited to damages of an amount equal to:
(a) £2,000,000 in respect of damage or loss to the tangible property of the Customer due to an Event of Default; and
(b) in respect of any other damage or loss, an amount equal to 125% of the Fees (including licence fees, hosting fees, support and maintenance fees) paid by the Customer during the twelve month period prior to the Event of Default.
19.5 Subject to clause 19.3, Aquarium shall not be liable to the Customer in respect of any Event of Default for loss of profits, goodwill, management data, turnover or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Aquarium had been advised of the possibility of the Customer incurring the same.
19.6 Without prejudice to the generality of any other term of this Agreement and subject to clause 19.3, Aquarium shall not be liable for any damage or losses or for any additional damage or losses arising from an Event of Default arising from the failure of the Customer to use the Aquarium Software and/or the Services in accordance with Applicable Law, the terms of this Agreement or of any relevant SOWs, Aquarium’s instructions and best data processing practices nor in respect of damage or loss arising from an Event of Default which occurs before Aquarium confirmed in writing to the Customer that the Aquarium Software and/or the Services were ready to use on live data.
19.7 Subject to clause 19.3, Aquarium shall not be liable for any Event of Default which arises in whole or in part from any delays in meeting its obligations due to causes beyond its reasonable control.
19.8 Subject to clause 19.3 Aquarium shall not be liable to the Customer for any losses, damages, costs, expenses which the Customer shall suffer or incur by reason of: (i) any unauthorised access or use of the Services or its access or use of the Services in breach of this Agreement; (ii) problems caused by software or hardware issues within the Customer System; (iii) its failure to undertake essential system management and security functions recommended by Aquarium; or (iv) its use of the Services after it became or should have become aware of an Event of Default but before Aquarium has confirmed that a solution has been completed.
19.9 The Customer acknowledges and agrees that computer software and services including the Aquarium Software and the Services are not error, fault or bug free, nor secure from persons wishing to misuse, tamper with, erase, alter or in other ways corrupt computer systems and that the data, information and records they display, retrieve, collate, transfer, calculate or disseminate may be affected by such occurrences and the Customer agrees that Aquarium shall have no liability to the Customer for any such occurrences arising in respect of or in relation to the Services.
Aquarium maintains appropriate insurance policies with a reputable insurance company in respect of the performance of the Services. Copies of the policies shall be provided on request by the Customer.
21.1 If a Force Majeure Event occurs which prevents, hinders or delays a Party (the "Affected Party") from performing any of its obligations under this Agreement, the Affected Party shall not be liable to the other Party and shall be released from its obligation to perform the relevant obligations to the extent that its ability to perform those obligations has been directly affected by the Force Majeure Event, provided that:
(a) the Affected Party notifies the other Party in writing as soon as reasonably practicable of the occurrence of the Force Majeure Event and the nature and likely duration of its impact upon the other Party;
(b) the Affected Party continues to use its best endeavours to recommence performance to the extent possible without delay; and
(c) the Affected Party continues to perform all its obligations which have not been affected by the Force Majeure Event.
21.2 Upon cessation of the Force Majeure Event, the Affected Party shall promptly notify the other Party of such cessation and resume performance of the affected obligations.
21.3 The Customer will not be obliged to pay any Fees relating to the affected obligations (including any affected Services) to the extent that such obligations remain unfulfilled, until Aquarium re-commences their performance in accordance with this Agreement. For the avoidance of doubt the Customer shall pay any Fees relating to obligations carried out by Aquarium up to the date on which Aquarium’s ability to perform its further obligations is affected by the Force Majeure Event.
22.1 Either Party may terminate this Agreement by notice in writing to the other party if a Termination Event occurs in relation to the other Party.
22.2 In this Agreement, a "Termination Event" shall be deemed to have occurred if any of the following events occur:
(a) a Party commits a material breach of this Agreement or the relevant SOW and such breach is irremediable; or, if the breach is remediable, such party fails to remedy the breach within 30 days from the date on which it receives a notice of the breach from the non-defaulting party;
(b) the Customer fails to pay any undisputed invoice or series of invoices at in accordance with clause 14;
(c) a Party commits repeated or persistent breaches of the same or similar provisions of this Agreement which, by their repetition or persistence, become material;
(d) any breach by a Party of any the obligations under clause 9 occurs;
(e) an Insolvency Event occurs;
(f) a Force Majeure Event prevents a party from complying with any of its obligations under this for a period of 30 consecutive days; or
(g) any other circumstances which are expressly agreed in writing to constitute a Termination Event.
TERMINATION OF THIS AGREEMENT
23.1 Either Party may terminate this Agreement by giving at least 90 days' written notice to the other Party, with no liability to the other Party in respect of such termination.
23.2 The termination or expiry of this Agreement under clause 23.1 does not affect the validity of any SOW which may have been entered into before the date of termination or expiry.
23.3 Each Party's further rights and obligations under this Agreement will cease immediately on termination or expiry, provided that termination or expiry will not affect:
(a) the accrued rights and obligations of the Parties as at the date of termination or expiry; or
(b) the continued operation of clauses 1 (Term), 8 (Compliance with Laws), 12 (Confidentiality), 19 (Liability), this clause 23 (Termination of this Agreement), 24 (Termination of SOWs), 27 (Entire Agreement), 28 (Notices), 32 (Governing Law and Jurisdiction) and any other provisions of this Agreement which are necessary for the interpretation and enforcement of this Agreement.
TERMINATION OF SOWS
24.1 SOWs may be terminated in accordance with their terms. In the absence of any such provisions, the Customer may terminate a SOW for Hosting Services or Maintenance and Technical Support Services for convenience (in whole or in part) at any time by giving at least 90 days' notice.
24.2 Either Party may immediately terminate the relevant SOW (in whole or in part) if a Termination Event occurs.
24.3 In any circumstances where either Party is entitled to terminate an individual SOW under clause 24.2, it may elect to terminate: (i) just that SOW (in whole or in part); or (ii) any one or more of the other SOWs (in whole or in part), regardless of whether or not the individual SOWs were directly affected by the Termination Event.
24.4 Each Party's further rights and obligations under the relevant SOW will cease immediately on termination or expiry, provided that termination or expiry will not affect:
(a) the accrued rights and obligations of the Parties as at the date of termination or expiry; or
(b) the continued operation of clauses 1 (Term), 8 (Compliance with Laws), 12 (Confidentiality), 19 (Liability), 23 (Termination of this Agreement), this clause 24 (Termination of SOWs), 27 (Entire Agreement), 28 (Notices), 32 (Governing Law and Jurisdiction) and any other provisions of this Agreement or the relevant SOW which are necessary for the interpretation and enforcement of this Agreement or the relevant SOW.
ASSIGNMENT AND NOVATION
25.1 Aquarium may assign, transfer, sub-licence, declare a trust of, mortgage, charge or deal in any other manner with this Agreement or any individual SOW, or with any of its rights or obligations under this Agreement or any individual SOW, without the prior written consent of the Customer.
25.2 The Customer may not at any time transfer, assign, novate, sub-licence or subcontract all or part of its rights or obligations (as applicable) under the relevant SOW without the prior written consent of Aquarium.
Aquarium may subcontract or delegate the performance of any of its obligations under this Agreement.
27.1 This Agreement, together with any relevant SOW(s) and/or any other written agreement or documentation whereby the Parties have recorded the terms agreed (including for the avoidance of doubt any documentation setting out commercial terms including the Services to be provided and fees payable by the Customer), constitute the entire agreement between the Parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the Parties, whether oral or written, in relation to that subject matter.
27.2 Nothing in this clause 27 shall exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
28.1 Except as otherwise expressly provided, any notice, consent, permission or other communication from any Party ("Sender") to any other Party ("Recipient") which is required to be given under or in connection with this Agreement ("Notice") shall be in writing, signed by the party giving it, and sent to the other party to the address notified to it by the other party from time to time. Notices shall be delivered by hand or recorded delivery post (or any equivalent postal service) and shall be deemed to have been duly given:
(a) if delivered by hand, at the time and date of delivery shown on the delivery receipt kept by the Sender;
(b) if sent by recorded delivery or any equivalent postal service to a Recipient in the same country as the Sender, two Notice Days from the date of posting as shown on the postal receipt kept by the Sender;
(c) if sent by recorded delivery or any equivalent postal service to a Recipient in a different country to the Sender, five Notice Days from the date of posting as shown on the postal receipt kept by the Sender.
THIRD PARTY RIGHTS
Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
30.1 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.
30.2 If any provision or part-provision of this Agreement is deemed deleted under clause 30.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
31.1 Aquarium reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting an updated version on the Aquarium website at www.aquarium-software.com (or such other website as may replace this from time to time).
31.2 The rights, powers and remedies provided in this Agreement and the relevant SOW are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by law or otherwise.
31.3 Nothing in this Agreement shall (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent for any purpose between the Parties.
31.4 The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement, a relevant SOW or by law shall not constitute a waiver of that right, power or remedy. If a Party waives a breach of any provision of this Agreement or the relevant SOW, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
GOVERNING LAW AND JURISDICTION
32.1 This Agreement and any relevant SOW and any dispute or claim arising out of or in connection with this Agreement or relevant SOW or their subject matter or formation (including any dispute or claim relating to non-contractual obligations) shall be governed by and construed in accordance with English law.
32.2 The Parties agree to submit any dispute arising in connection with this Agreement or any relevant SOW to the exclusive jurisdiction of the courts of England and Wales (including any dispute or claim relating to non-contractual obligations).
The definitions set out below apply in this Agreement and, unless expressly provided therein, all relevant SOWs.
any statute, statutory provision, regulation, determination, by-law or other subordinate legislation in force from time to time in England and Wales which is applicable to the relevant Party from time to time.
these terms and conditions, as modified and/or updated by Aquarium from time to time.
Aquarium and any business entity that directly or indirectly controls, is controlled by, or is under common control with Aquarium.
the premises located at Poplar House, 126a Ashley Road, Hale, Cheshire WA14 2UN or such other premises occupied by Aquarium from time to time.
Aquarium Modified Software
any Aquarium Standard Software modified or to be modified by Aquarium, and/or any Modified Third Party Software.
the Aquarium Standard Software, the Aquarium Modified Software, the Open-Source Software, the Tools, the Bespoke Software and the Third Party Software (if any), in each case agreed by Aquarium to be provided to the Customer from time to time.
Aquarium Standard Software
the unconfigured version of the Aquarium platform.
the sub-contractors engaged by Aquarium in connection with the provision of the Services from time to time.
those employees and independent contractors of the Customer who are entitled to use the Aquarium Software or the Services, as the case may be.
software programs developed by Aquarium specifically for the Customer as part of the Aquarium Software.
Monday to Friday inclusive excluding bank and other public holidays in England and Wales.
the date on which Aquarium commences its provision of the Services to the Customer, or such earlier date as the Parties may agree.
all data, information and material in any medium or format relating to the business, customers, suppliers, employees, officers, systems or affairs of the Disclosing Party or the members of its group that is or has been (at any time): (i) disclosed by or on behalf of the Disclosing Party to the Receiving Party under or in connection with this Agreement or any SOW, whether orally, electronically, in writing or otherwise, including copies of such information; or (ii) learnt, acquired or generated by the Receiving Party in connection with this Agreement or any relevant SOW (including the terms of this Agreement and each SOW). For the avoidance of doubt all Aquarium Software and all Documentation shall be deemed to be Confidential Information of Aquarium.
the party who purchases Services from Aquarium.
is any data provided by the Customer to Aquarium or otherwise accessed by Aquarium in the course of the provision of the Services.
any equipment or other assets (other than real property) which are owned or leased by the Customer and which are made available to Aquarium in order to be used by Aquarium for or in connection with the provision of the Services.
all computer equipment (including mainframes, personal computers, servers, and customer/server stations), all associated or interconnected network equipment, routers, semi-conductor chips, embedded software, and communication lines, and all other equipment (owned or operated on behalf of the Customer.
Data Protection Legislation
the Data Protection Act 1998, the Data Protection Directive 95/46/EC, the General Data Protection Regulation and all other Applicable Laws from time to time relating to the processing of the personal data.
the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine- readable form supplied by Aquarium from time to time in connection with the Aquarium Software.
means any additions or amendments to the Aquarium Software which enhance an existing functionality of, or add additional functionality to, the Aquarium Software, but which do not constitute a New Version of the Aquarium Software.
the fees payable by the Customer to Aquarium for the provision of the Services in accordance with the terms of this Agreement (and any relevant SOW).
Force Majeure Event
an event the occurrence of which is beyond the reasonable control of the Affected Party, including the following:
(a) Act of God (including earthquake or other natural disaster), act of terrorism, war or warlike operations, civil unrest or riot; and
(b) industrial action (other than of the affected Party’s own workforce), fire, flood, explosion or malicious damage (but only to the extent that any of these is beyond the reasonable control of the Affected Party).
General Data Protection Regulation
Regulation (EU) 2016/679.
Good Industry Practice
the exercise of that degree of professionalism, skill, care, prudence, and foresight which would be expected from a skilled and experienced service provider engaged in the same type of activity under the same or similar circumstances.
any hosting services, functions or responsibilities relating to the Aquarium Software agreed by Aquarium to be provided to the Customer from time to time.
the occurrence of any of the following:
(a) a Party stops or suspends, or declares any intention to stop or suspend, its business or payment of its debts or any class of its debts generally or is or becomes unable to pay its debts or otherwise becomes insolvent;
(b) a receiver, administrative receiver or other manager, trustee, liquidator, administrator or similar person or officer is appointed in respect of a party of the whole or any material part of its assets or undertaking, or a Party requests the appointment of such a person or any step is taken to enforce any charge, mortgage or other security interest over all or any material part of its assets or undertaking or any of the same is or becomes enforceable;
(c) a notice is issued for the purposes of convening a meeting to approve the placing of a Party in administration or liquidation, or an order made for the administration or liquidation of a Party or a Party otherwise becomes subject to dissolution proceedings;
(d) a voluntary arrangement pursuant to any relevant insolvency legislation, or any other arrangement, compromise or composition of a Party’s debts, or any class of its debts, is proposed or made by or with a Party.
(e) a judgment, order or award made against a Party is outstanding and not discharged within 10 days or if any distress, execution, sequestration or similar process is levied on or commenced against any of the assets of a Party and not lifted, withdrawn or discharged within 10 days; or
(f) any circumstances arise or events occur in relation to a Party or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject, which corresponds to or has an effect equivalent or similar to any of those stated in paragraphs (a) to (e).
Intellectual Property Rights
patents, rights to inventions, copyright and related rights, trade marks and service 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, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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, including the right to sue for and recover damages for past infringements.
the Aquarium Software agreed to be licensed by Aquarium to the Customer.
Maintenance and Technical Support Services
any maintenance and technical support services for the Aquarium Software or any part thereof which Aquarium agrees to provide to the Customer.
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.
Modified Third Party Software
Third Party Software which has been, or will be, modified by Aquarium.
a new release of the Aquarium Software released for sale by Aquarium which has significant differences to prior versions of the Aquarium Software that are generally accepted by the marketplace as constituting a new product.
Open Sourced Software
any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included and used in, or in the development of, the Aquarium Software, or with which the Aquarium Software is compiled or to which it is linked.
any additions or amendments to the Aquarium Software which corrects bugs, errors or faults in the Aquarium Software, increases protection against unauthorised penetration or generally improves performance, security or interoperability of the Aquarium Software.
means Aquarium and the Customer and “Party” shall be construed accordingly.
in relation to any Service, the use for the Services which is expressly agreed between the parties in writing.
in relation to either Party, means the directors, officers, employees, agents, consultants or subcontractors of that Party.
any person or professional body or law enforcement agency having regulatory, supervisory or governmental authority (whether under a statutory scheme or otherwise ) to regulate, investigate or influence all or any part of the Services or all or any part of the businesses, assets, resources, operations or employees of Aquarium and/or any Aquarium Affiliate and/or the Customer.
is any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to the Customer Personal Data.
the services agreed by the Parties from time to time, which may include any or all of the following:
(a) Software Development and Configuration Services;
(b) Maintenance and Technical Support Services; and
(c) Hosting Services,
in each case, as such services may be supplemented, enhanced, modified or replaced from time to time in accordance with clause 15.
a separate contract for the supply of the applicable Services between the Parties, which may be entered into from time to time by the Parties.
Standard Third Party Software
Third Party Software which has been provided to the Customer by Aquarium without modification.
Aquarium’s standards fees and charges in force at the time of the delivery of the relevant services of the kind provided to the Customer. Details of Aquarium’s Standard Rates shall be provided to the Customer on request.
Third Party Licences
the Open-Source Software licences, if any, relating to the Aquarium Software, including the General Public Licence (if applicable) and any proprietary Third Party Software licence.
Third Party Software
the software programs proprietary to third parties provided by Aquarium to the Customer from time to time, including the Modified Third Party Software and the Standard Third Party Software.
any tools and know-how developed, and methods invented, by Aquarium in the course of or as a result of carrying out any work, duties and obligations under this Agreement or any SOW.
END OF POLICY
Date of change
Summary of change(s)
Revised Terms and Conditions (to include changes for GDPR).