GEOPLAN SPATIAL INTELLIGENCE LIMITED
Registered Office: Bilton Court Wetherby Road Harrogate North Yorkshire HG3 1GP
Date of incorporation: 21 July 1986 Registered Number: 2039116
TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
|“Business Day”||a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
|“Charges”||the charges payable by the Customer for the supply of the Services in accordance with clause 5.|
|“Commencement Date”||has the meaning given in clause 2.2.|
|“Conditions”||these terms and conditions as amended from time to time in accordance with clause 14.5.|
|“Contract”||the contract between Geoplan and the Customer for the supply of Services in accordance with these Conditions.|
|“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures”||as defined in the Data Protection Legislation.|
|“Customer”||the person or firm identified in the Order, Statement of Work or other sales documentation as the case may be, who purchases Services from Geoplan.|
|“Customer Default”||has the meaning set out in clause 4.2.|
|“Data Protection Legislation”||the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.|
|“Geoplan”||Geoplan Spatial Intelligence Limited registered in England and Wales with company number 02039116 and registered office address at Bilton Court, Wetherby Road, Harrogate, North Yorkshire, HG3 1GP.|
|“Geoplan Data”||the data to be supplied to the Customer by Geoplan pursuant to the Order and the Contract in any format, including without limitation all data packs.|
|“Geoplan Materials”||any documents, materials, reports, media, images, data, diagrams, computer programs, specifications, information, instructions, equipment and other items or property supplied by Geoplan under this Contract, including the materials referred to in clause 14.3.|
|“Geoplan Software”||the software, online software applications and cloud-based solutions and any Maintenance Release to be supplied to the Customer by Geoplan pursuant to the Order and the Contract.|
|“Heightened Cybersecurity Requirements”||any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or its end users relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148)), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.|
|“Intellectual Property Rights”||patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral 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, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how, ideas, processes 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.|
|“Maintenance Release”||release of the Geoplan Software that corrects faults, adds functionality or otherwise amends or upgrades the Geoplan Software, but which does not constitute a New Version.|
|“New Version”||any new version of the Geoplan Software which from time to time is publicly marketed and offered for purchase by Geoplan in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.|
|“Order”||the Customer's order for Services as set out in the Customer's purchase order form or the Customer's written acceptance of Geoplan's Statement of Work, as the case may be.|
|“Services”||the services, including, if applicable, the provision of consultancy services, Geoplan Data and/or Geoplan Software, supplied by Geoplan to the Customer as set out in the Statement of Work.|
|“Statement of Work”||the written quotation or proposal setting out the Services to be provided by Geoplan including description and specification, the timetable for their performance, the Charges and related matters.|
|“Third-Party Additional Terms”||the additional terms and conditions relating to Third-Party Software set out in Geoplan’s website https://www.geoplan.com/terms-and-conditions, as applicable.|
|“Third-Party Software”||the third-party software identified in Geoplan’s website https://www.geoplan.com/copyright, as applicable.|
|“UK Data Protection Legislation”||all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.|
(a) The Schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions include the Schedules.
(b) In the case of conflict or ambiguity between any provision contained in the body of these Conditions and any provision contained in the schedules, the provision in the body of these Conditions shall take precedence.
(c) References to clauses and Schedules are to the clauses and Schedules of these Conditions and references to paragraphs are to paragraphs of the relevant Schedule.
(d) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(e) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(f) A reference to writing or written includes email.
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Geoplan issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Geoplan, and any descriptions or illustrations contained in Geoplan's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any Statement of Work given by Geoplan shall not constitute an offer that is capable of acceptance. Any such Statement of Work shall only be valid for a period of 20 Business Days from its date of issue and to create a binding contract the Customer must place an Order which is then accepted by Geoplan in writing.
3.1 Geoplan shall supply the Services to the Customer in accordance with the Statement of Work in all material respects.
3.2 Geoplan shall use all reasonable endeavours to meet any performance dates specified in the Statement of Work given to the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Geoplan reserves the right to amend the Statement of Work if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Geoplan shall notify the Customer in any such event.
3.4 Geoplan warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides to Geoplan in relation to the Services are complete and accurate;
(b) co-operate with Geoplan in all matters relating to the Services;
(c) provide Geoplan, its employees, agents, consultants and subcontractors, with access to the Customer's information technology systems as reasonably required by Geoplan;
(d) provide Geoplan with such information and materials as Geoplan may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) ensure that it promptly complies with any minimum hardware configuration requirements specified by Geoplan for the purpose of establishing connectivity between the Customer’s system and Geoplan’s system for the purpose of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws;
(h) keep any Geoplan Materials in the Customer's possession or control in safe custody at its own risk, maintain the Geoplan Materials in good condition until returned to Geoplan, and not dispose of or use the Geoplan Materials other than in accordance with Geoplan's written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Statement of Work;
(j) not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive, facilitates illegal activity, is discriminatory, is otherwise illegal or causes damage or injury to any person or property and Geoplan reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause;
(k) be, to the extent permitted by law and except as otherwise expressly provided in this Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Geoplan'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.
4.2 If Geoplan's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Geoplan shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Geoplan's performance of any of its obligations;
(b) Geoplan shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Geoplan's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse Geoplan on written demand for any costs or losses sustained or incurred by Geoplan arising directly or indirectly from the Customer Default.
4.3 Geoplan is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.1 The Charges for the Services shall be the price set out in Geoplan’s Statement of Work.
5.2 Geoplan shall invoice the Customer upon written acceptance of the Order by Geoplan or as otherwise agreed by Geoplan and confirmed in writing to the Customer.
5.3 Geoplan reserves the right to increase the price of the Services, by giving notice to the Customer, to reflect any increase in the cost of the Services to Geoplan that is due to:
(a) any factor beyond the control of Geoplan (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);
(b) any request by the Customer to change the Statement of Work or any performance dates; or
(c) any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give Geoplan adequate or accurate information or instructions in respect of the Services.
5.4 The Customer shall pay each invoice submitted by Geoplan:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Geoplan, and
time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Geoplan to the Customer, the Customer shall, on receipt of a valid VAT invoice from Geoplan, pay to Geoplan such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make a payment due to Geoplan under the Contract by the due date, then, without limiting Geoplan's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services and the Geoplan Materials (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Geoplan, unless otherwise provided in the Statement of Work. The title to and the Intellectual Property Rights in the Geoplan Materials, Geoplan Data and the Geoplan Software shall not pass to the Customer. The use of the Geoplan Data and of the Geoplan Software by the Customer, as applicable, is strictly subject to these Conditions and the terms of the licences at Schedule 1 and Schedule 2, and by entering into the Contract the Customer agrees to comply with such terms.
6.2 In consideration of the Charges, Geoplan grants to the Customer (or shall procure the direct grant to the Customer of) a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Geoplan Software and the Geoplan Data (as the case may be):
(a) for the purpose of receiving and using the Services; and
(b) for internal business use only, subject to these Conditions and the terms of the Geoplan Software licence and the Geoplan Data licence at Schedule 1 and Schedule 2, respectively.
6.3 The Customer shall not sub-license, assign, sell, dispose of, transfer or otherwise grant any rights to any third party in respect of the rights granted in clause 6.2.
6.4 The Customer grants Geoplan a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Geoplan for the term of the Contract for the purpose of providing the Services to the Customer.
6.5 Geoplan undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Geoplan Software or the Geoplan Data (or any part thereof) in accordance with the terms of this Contract infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this clause shall not apply where the Claim in question is attributable to possession or use of the Geoplan Software (or any part thereof) by the Customer other than in accordance with the terms of this Contract, use of the Geoplan Software in combination with any hardware or software not supplied or specified by Geoplan if the infringement would have been avoided by the use of the Geoplan Software not so combined, or use of a non-current release of the Geoplan Software.
6.6 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, Geoplan's obligations under clause 6.5 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to Geoplan, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Geoplan (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving Geoplan and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Geoplan and its professional advisers to examine them and to take copies (at Geoplan's expense) for the purpose of assessing the Claim; and
(d) subject to Geoplan indemnifying the Customer against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Geoplan may reasonably request to avoid, dispute, compromise or defend the Claim.
6.7 If any Claim is made, or in Geoplan's reasonable opinion is likely to be made, against the Customer, Geoplan may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Geoplan Software or the Geoplan Data (or any part thereof) in accordance with the terms of these Conditions;
(b) modify the Geoplan Software or the Geoplan Data so that it ceases to be infringing;
(c) replace the Geoplan Software or the Geoplan Data with non-infringing Geoplan Software or Geoplan Software; or
(d) terminate this Contract immediately by notice in writing to the Customer and refund any of the charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Geoplan Software to the date of termination) on return of the Geoplan Software and Geoplan Data and all copies thereof, provided that if Geoplan modifies or replaces the Geoplan Software and/or the Geoplan Data, the modified or replacement Geoplan Software and/or Geoplan Data must comply with the warranties contained in these Conditions and the Customer shall have the same rights in respect thereof as it would have had under those paragraphs had the references to the date of this Contract been references to the date on which such modification or replacement was made.
6.8 In no event shall Geoplan, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification, possession, use, development or retention of the Geoplan Software or the Geoplan Data by anyone other than Geoplan; or
(b) the Customer’s use of any Manipulated Data;
(c) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by Geoplan; or
(d) the Customer's use of the Services after notice of the alleged or actual infringement from Geoplan or any appropriate authority.
6.9 Notwithstanding any other provision in these Conditions, clause 6.5 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
6.10 This clause 6 constitutes the Customer's exclusive remedy and Geoplan's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8 of these Conditions.
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means (for so long as and to the extent that they apply to Geoplan) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Geoplan is the processor.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Geoplan for the duration and purposes of the Contract.
7.4 The Customer shall indemnify Geoplan against any claims, losses, damages, costs (including all legal fees) and expenses incurred by or awarded against Geoplan arising out of or in connection with the processing of the data supplied by the Customer to Geoplan under this Contract (Claims against Geoplan), except to the extent that the Claims against Geoplan have arisen out of or in connection with any negligence or wilful default of Geoplan or with any data supplied by Geoplan for use in combination with the data supplied by the Customer to Geoplan. For clarity, Claims against Geoplan shall include any claim or action claiming that the provision, receipt or use of the data supplied by the Customer to Geoplan (wholly or in part) infringes any Intellectual Property Right of a third party. This clause shall survive termination of the Contract.
7.5 Without prejudice to the generality of clause 7.1, Geoplan shall, in relation to any personal data processed in connection with the performance by Geoplan of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless Geoplan is required by Applicable Laws to otherwise process that personal data. Where Geoplan is relying on Applicable Laws as the basis for processing personal data, Geoplan shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Geoplan from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Geoplan has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Geoplan complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Geoplan complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of Geoplan, an instruction infringes the Data Protection Legislation.
7.6 The Customer consents to Geoplan appointing a third party processor of personal data under the Contract only with the prior consent of the Customer. In the event of a third party processor of personal data being appointed under the Contract, Geoplan confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party's standard terms of business and in either case which Geoplan confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Geoplan, Geoplan shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 7.
7.7 Either party may, at any time on not less than 30 days' notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8.1 Geoplan has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5 million per claim. The limits and exclusions in this clause reflect the insurance cover Geoplan has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract whether liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.4 Subject to clause 8.3, Geoplan's total liability to the Customer shall not exceed the aggregate of all sums paid by the Customer to Geoplan under the Contract.
8.5 This clause 8.5 sets out specific heads of excluded loss:
(a) Subject to clause 8.3, the types of loss listed in clause 8.5(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
8.6 Geoplan has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.7 Unless the Customer notifies Geoplan that it intends to make a claim in respect of an event within the notice period, Geoplan shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.8 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months' written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, Geoplan may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 Without affecting any other right or remedy available to it, Geoplan may suspend the supply of Services under the Contract or any other contract between the Customer and Geoplan if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d), or Geoplan reasonably believes that the Customer is about to become subject to any of them.
10.1 On termination of the Contract:
(a) all licences granted under these Conditions shall immediately terminate and the Customer shall immediately cease all use of the Services and Geoplan Materials;
(b) the Customer shall immediately destroy or return to Geoplan (at Geoplan's option) all copies of the Geoplan Software then in its possession, custody or control and, in the case of destruction, certify to Geoplan that it has done so;
(c) the Customer shall as soon as reasonably practicable ensure that all Geoplan Data and Manipulated Data is deleted from the Customer’s system;
(d) the Customer shall immediately pay to Geoplan all of Geoplan's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Geoplan shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(e) the Customer shall return and make no further use of the Geoplan Materials or other items (and all copies of them) belonging to Geoplan. If the Customer fails to do so, then Geoplan may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 The Customer shall keep, in paper and electronic form, accurate and up-to-date records (Records) showing, during the previous three years the steps taken by the Customer to comply with the restrictions imposed by these Conditions. The Customer shall ensure that the Records are sufficient to enable Geoplan to verify the Customer's compliance with its obligations under this clause.
11.2 The Customer shall permit Geoplan and its third party representatives (including its designated auditor), on reasonable notice during normal business hours to:
(a) gain (physical and remote electronic) access to, and take copies of, the Records and any other information held at the Customer's premises or on the Customer’s system; and
(b) inspect all Records and Customer’s systems relating to the use, Distribution, Redistribution, permissioning and control of the Geoplan Data and the Geoplan Software, for the purpose of auditing the Customer's compliance with its obligations under these Conditions. Such audit rights shall continue for three years after termination of this Contract. The Customer shall give all necessary assistance to the conduct of such audits during the term of this Contract and for a period of three years after termination of this Contract.
12.1 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Geoplan.
12.2 If any unauthorised use is made of the Geoplan Data, Geoplan Software or Geoplan Materials and such use is attributable to the act or default of, or through, the Customer then, without prejudice to the Geoplan's other rights and remedies, the Customer shall immediately be liable to pay Geoplan an amount equal to the charges that Geoplan would have charged, had Geoplan or the Customer (as the case may be) authorised the unauthorised user at the beginning of the period of that unauthorised use together with interest at the rate provided for in clause 5.6 of these Conditions from the date of that unauthorised use to the date of payment.
13.1 The Customer shall ensure that the Geoplan Data and Geoplan Software are kept secure by using any security feature including any key, PIN, password, token or smartcard (Security Features) and in an encrypted form, and shall use the best available security practices and systems applicable to the use of the Geoplan Data and Geoplan Software to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Geoplan Data and the Geoplan Software.
13.2 If the Customer becomes aware of any misuse of any Geoplan Data or the Geoplan Software, or any security breach in connection with this Contract that could compromise the security or integrity of the Geoplan Data or the Geoplan Software or otherwise adversely affect Geoplan or if the Customer learns or suspects that any Security Feature has been revealed to or obtained by any unauthorised person, the Customer shall, at the Customer's expense, promptly notify Geoplan and fully co-operate with Geoplan to remedy the issue as soon as reasonably practicable.
14.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.2 Assignment and other dealings.
(a) Geoplan may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Geoplan.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 14.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
14.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
14.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 14.7 shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email to the address specified by the other party.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 14.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
14.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
1.1 In consideration of the charges paid under the Contract and subject to the restrictions set out in this Schedule and the other terms and conditions of these Conditions, Geoplan grants to the Customer a non-exclusive and non-transferable licence during the term of the Contract to use the Geoplan Software only for the Customer’s internal business operations.
1.2 In relation to scope of use:
(a) for the purposes of paragraph 1.1, use of the Geoplan Software shall be restricted to use of the Geoplan Software in for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the Geoplan Software by, or for the benefit of, any person other than an employee of the Customer).
(b) the Customer may not use the Geoplan Software other than as specified in paragraph 1.1 and paragraph 1.2(a) without the prior written consent of Geoplan, and the Customer acknowledges that additional charges may be payable on any change of use approved by Geoplan.
(c) the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Geoplan Software in whole or in part;
(d) the Customer shall indemnify and hold Geoplan harmless against any loss or damage which it may suffer or incur as a result of the Customer's breach of any Third-Party Additional Terms howsoever arising;
(e) the Third-Party Software shall be deemed to be incorporated within the Geoplan Software for the purposes of this Contract (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms; and
(f) Geoplan may treat the Customer's breach of any Third-Party Additional Terms as a breach of this Contract.
1.3 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this Contract in whole or in part;
(b) allow the Geoplan Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this Contract.
1.4 The Customer shall only permit those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services in accordance the licence granted under this Schedule 1, as agreed in writing with Geoplan (Authorised Users) to use the Geoplan Software during the term of the Contract.
1.5 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Geoplan Software shall not exceed the number of user subscriptions it has purchased from time to time;
(b) it will not allow or suffer any user subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed regularly and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Geoplan upon Geoplan’s written request;
1.6 The Customer shall ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User's breach of this Contract.
2.1 Geoplan will provide the Customer with all Maintenance Releases generally made available to its customers. Geoplan warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Geoplan Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
3.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Contract (or any products, including Geoplan Software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the 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.
3.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it 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.
4.1 Geoplan warrants that the Geoplan Software will conform in all material respects to the Statement of Work for a period of 90 days from the date of this Contract (Warranty Period). If, within the Warranty Period, the Customer notifies Geoplan in writing of any defect or fault in the Geoplan Software in consequence of which it fails to conform in all material respects to the Statement of Work, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Geoplan Software or used it outside the terms of this Contract for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other Geoplan Software not provided by Geoplan, or it has not been loaded onto Geoplan-specified or suitably configured equipment, Geoplan shall, at Geoplan's option, do one of the following:
(a) repair the Geoplan Software;
(b) replace the Geoplan Software; or
(c) terminate this Contract immediately by notice in writing to the Customer and refund any of the charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Geoplan Software to the date of termination) on return of the Geoplan Software and all copies thereof,
provided the Customer provides all the information that may be necessary to assist Geoplan in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Geoplan to re-create the defect or fault.
4.2 Geoplan does not warrant that the use of the Geoplan Software will be uninterrupted or error-free or that it will meet any Heightened Cybersecurity Requirements.
4.3 The Customer accepts responsibility for the selection of the Geoplan Software to achieve its intended results.
4.4 The Customer acknowledges that any open-source software provided by Geoplan is provided "as is" and expressly subject to the disclaimer in paragraph 4.5.
4.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
5.1 The Customer acknowledges that all Intellectual Property Rights in the Geoplan Software and any Maintenance Releases belong and shall belong to Geoplan or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Geoplan Software other than the right to use it in accordance with the terms of this Contract.
1.1 The following definitions shall apply in this Schedule:
|“Customer User”||any employee of the Customer authorised by the Customer to access and use the Geoplan Data (wholly or in part) in accordance with the licence granted under this Schedule 2, using his own unique identifier provided by Geoplan.|
|“Customer System”||any network and information system or systems owned or operated by the Customer to which Geoplan Data is delivered or within which Geoplan Data or Manipulated Data is Distributed in accordance with this Schedule 2.|
any Geoplan Data (wholly or in part) Manipulated to such a degree that it:
(a) cannot be identified as originating or deriving directly from the Geoplan Data and cannot be reverse-engineered such that it can be so identified; and
(b) is not capable of use substantially as a substitute for the Geoplan Data.
|“Distribute”||to make the Geoplan Data accessible (including the provision of access through a database or other application populated with the Geoplan Data, reselling, sub-licensing, transferring or disclosing the Geoplan Data) by any means, including any electronic means, to any Customer User.|
|“Manipulate”||to combine or aggregate the Geoplan Data (wholly or in part) with other data or information or to adapt the Geoplan Data (wholly or in part).|
|“Manipulated Data”||any Geoplan Data which has been Manipulated. Manipulated Data includes any Derived Data.|
2.1 In consideration of the Charges paid under the Contract and subject to the restrictions set out in this Schedule and the other terms and conditions of these Conditions, Geoplan grants to the Customer a non-exclusive, non-transferable, revocable, licence for internal business use of the Customer only (which shall not include the use of the Geoplan Data by, or for the benefit of, any person other than a Customer User) during the term of the Contract to:
(a) access, view and Manipulate the Geoplan Data and create Derived Data;
(b) store the Geoplan Data and Manipulated Data on the Customer’s System; and
(c) Distribute the Geoplan Data and Manipulated Data to Customer Users on the Customer System.
2.2 Except as expressly provided in this Licence, the Customer shall not:
(a) use the Geoplan Data (wholly or in part) in its products or services; or
(b) redistribute the Geoplan Data (wholly or in part).
2.3 The Customer shall:
(a) limit access to the Geoplan Data to the Customer Users;
(b) only make copies of the Geoplan Data to the extent reasonably necessary for the following purposes: back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing;
(c) not use the Geoplan Data for any purpose contrary to any law or regulation or any regulatory code, guidance or request;
(d) not extract, reutilise, use, exploit, redistribute, redisseminate, copy or store the Geoplan Data for any purpose not expressly permitted by this Licence.
3.1 Geoplan warrants that it has the right to license the receipt and use of Geoplan Data and Materials as specified in this Contract.
3.2 Except as expressly stated in this Contract, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
3.3 Without limiting the effect of paragraph 3.2, Geoplan does not warrant that:
(a) the supply of the Geoplan Data will be free from interruption;
(b) the Geoplan Data is accurate, complete, reliable, secure, useful, fit for purpose or timely; or
(c) the Geoplan Data has been tested for use by the Customer or any third party or that the Geoplan Data will be suitable for or be capable of being used by the Customer or any third party.
4.1 The Customer acknowledges that:
(a) all Intellectual Property Rights in the Geoplan Data are the property of Geoplan or its licensors, as the case may be;
(b) it shall have no rights in or to the Geoplan Data other than the right to use them in accordance with the express terms of this Contract; and
(c) Geoplan or its licensors has or have made and will continue to make substantial investment in the obtaining, verification, selection, co-ordination, development, presentation and supply of the Geoplan Data.
4.2 The Customer assigns to Geoplan, and shall assign to it, with full title guarantee all Intellectual Property Rights in any development of any Manipulated Data it may create, by way of future assignment.
4.3 Any display of the Geoplan Data by the Customer shall credit, wherever technically and commercially feasible, Geoplan, any licensor of Geoplan or any other source of the Geoplan Data specified by Geoplan as the source of the Geoplan Data.
4.4 The Customer acknowledges that reference in any element of the Geoplan Data to trade names or proprietary products where no specific acknowledgement of such names or products is made does not imply that such names or products may be regarded by the Customer as free for general use, outside the scope of the use of the Geoplan Data authorised by this Contract.