1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Annual Subscription: has the meaning given to it in clause 14.2.2.
Application: the Client’s request for access to the Platform and the Documentation, made by completing the application process on https://.artos.io/welcome
Artos: Artos Systems Limited incorporated and registered in England and Wales with company number 11168543 whose registered office is at Salisbury House, Unit 481-499, 29 Finsbury Circus, London, County, United Kingdom, EC2M 5SQ.
Authorised Users: those employees of the Client who are authorised by the Client to use the Platform and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person or firm to whom Artos shall provide access to the Platform and the Documentation, as specified in the Application.
Client Data: the data (including but not limited to personal data) inputted by the Client, Authorised Users, or Artos on the Client's behalf for the purpose of using the Platform or facilitating the Client's use of the Platform.
Client Default: the data inputted by the Client, Authorised Users, or Artos on the Client's behalf for the purpose of using the Platform or facilitating the Client's use of the Platform.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Contract: the contract between Artos and the Client for the provision of access to the Platform and the Documentation in accordance with these Conditions. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the United Kingdom including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Documentation: the document made available to the Client by Artos online via www.artos.io/legal or such other web address notified by Artos to the Client from time to time which sets out a description of the Platform and the user instructions for the Platform.
Effective Date: the date specified in clause 2.3.
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 Client or an Authorised User 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.
Initial Term: has the meaning given to it in clause 14.1.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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 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.
Monthly Subscription: has the meaning given to it in clause 14.2.2.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Term: the period described in clause 14.3.
Permitted Recipients: the parties to the Contract, the employees of each party and any third parties engaged to perform obligations in connection with the Contract.
Platform: the online Artos Marketplace (as more particularly described in the Documentation) to which Artos provides access to the Client on a subscription basis via Artos’s website for the purposes of buying or selling products subject to these Conditions.
Subscription Commencement Date: the date on which the Subscription Term commences, as described in clause 14.2.2 and clause 14.2.3 (as applicable).
Subscription Fee: the subscription fee payable by the Client to Artos for access to the Platform, as notified by Artos to the Client in accordance with clause 14.2.
Subscription Fee Notice: has the meaning given to it at clause 14.2.
Subscription Term: means: (a) where the parties have entered into a Monthly Subscription in accordance with clause 14.2.2 or clause 14.2.3, the one (1) month period commencing on the Subscription Commencement Date and including any Renewal Terms in accordance with clause 14.3; and
(b) where the parties have entered into an Annual Subscription in accordance with clause 14.2.2, the twelve (12) month period commencing on the Subscription Commencement Date and including any Renewal Terms in accordance with clause 14.3.
Support Services Policy: Artos's policy for providing support in relation to the Platform as made available at https://artos.io or such other website address as may be notified to the Client from time to time.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2.1 A reference to legislation or a legislative provision: (a) is a reference to it as it is in force as at the Effective Date; and (b) shall include all subordinate legislation made as at the Effective Date under that legislation or legislative provision.
1.2.2 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.
1.2.3 A reference to writing or written includes email.
BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. 2.2 The Client may, at any time, make an Application, which constitutes an offer by the Client to obtain access to the Platform and the Documentation in accordance with these Conditions. The Client is responsible for ensuring that the information it provides as part of the Application is complete and accurate.
2.3 The Client’s Application shall only be deemed to be accepted by Artos when Artos issues written acceptance of the same, at which point and on which date the Contract shall come into existence (“Effective Date”).
2.4 The Client waives any right it might otherwise have to rely on any term endorsed upon, submitted, delivered with or contained in any documents of the Client that is inconsistent with these Conditions.
ACCESS TO THE PLATFORM
3.1 Artos shall, during the Initial Term and any subsequent Subscription Term, provide access to the Platform and make available the Documentation to the Client on and subject to the terms of these Conditions.
3.2 Artos shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance; and
3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that Artos has used reasonable endeavours to give the Client notice in advance.
3.3 Artos will, as part of granting the Client access to the Platform and at no additional cost to the Client, provide the Client with Artos's standard support services during Normal Business Hours in accordance with Artos's Support Services Policy in effect as at the Effective Date. Artos may amend the Support Services Policy in its sole and absolute discretion from time to time.
AUTHORISED USERS & USE OF THE PLATFORM
4.1 Subject to the restrictions set out in this clause 4 and the rest of these Conditions, Artos hereby grants to the Client a non exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Platform and the Documentation during the Initial Term and any subsequent Subscription Term solely for the Client's internal business operations.
4.2 In relation to the Authorised Users, the Client undertakes that:
4.2.1 each Authorised User shall keep a secure password for their use of the Platform and Documentation and that each Authorised User shall keep their password confidential;
4.2.2 it shall permit Artos or Artos's designated auditor to audit the Platform in order to establish the name and password of each Authorised User and the Client's data processing facilities to audit compliance with the Contract. Each such audit may be conducted no more than once per quarter, with each party bearing its own costs in relation to such audit, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business; and
4.2.3 if any of the audits referred to in clause
4.2.2 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Artos's other rights, the Client shall promptly disable such passwords and Artos shall not issue any new passwords to any such individual.
4.3 The Client shall not, and shall procure that its Authorised Users shall not, seek to sell or buy any products via the Platform and/or access, store, distribute or transmit any Viruses, or any materials during the course of its use of the Platform that:
4.3.1 are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.3.2 facilitate illegal activity;
4.3.3 depict sexually explicit images;
4.3.4 promote unlawful violence;
4.3.5 are discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.3.6 are otherwise illegal or cause damage or injury to any person or property; and Artos reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to the Platform as a result of its or its Authorised Users’ breach of the provisions of this clause.
4.4 The Client shall not, and shall procure that its Authorised Users shall not:
4.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
4.4.2 access all or any part of the Platform and Documentation in order to build a product or service which competes with the Platform and/or the Documentation; or
4.4.3 use the Platform and/or Documentation to provide products or services to third parties other than as permitted in the Documentation; or
4.4.4 subject to clause 16.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or Documentation available to any third party except the Authorised Users, or
4.4.5 attempt to obtain, or assist third parties in obtaining, access to the Platform and/or Documentation unless using the built-in invite features of the Platform, other than as provided under this clause 4; or
4.4.6 introduce or permit the introduction of, any Virus or Vulnerability into Artos's network and information systems.
4.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Artos.
4.6 The rights provided under this clause 4 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
5.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Data Protection Legislation.
5.2 The parties have determined that, for the purposes of the Data Protection Legislation, Artos shall act as controller of the personal data which the Client and/or its Authorised Users discloses to Artos or makes available to Artos through the use of the Platform and/or the Documentation.
5.3 Should the determination in clause 5.2 change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause 5.
5.5 Without prejudice to clause 5.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to Artos and lawful collection of the same by Artos for the duration and purposes of the Contract.
5.6 The Client provides its prior, general authorisation for Artos to:
5.6.1 appoint processors to process the Client’s personal data, provided that Artos shall: (a) ensure that the terms on which it appoints such processors comply with Data Protection Legislation, and are consistent with the obligations imposed on Artos in this clause 5; and (b) remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Artos;
THIRD PARTY PROVIDERS
7.1 Artos undertakes that the Platform will be made available and function substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform contrary to Artos's instructions, or modification or alteration of the Platform by any party other than Artos or Artos's duly authorised contractors or agents. If the Platform does not conform with the foregoing undertaking, Artos will, at its expense, use all reasonable commercial endeavours to correct any such non conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or us stitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3.1 does not warrant that: (a) the Client's use of the Platform will be uninterrupted or error-free; (b) the Platform, Documentation and/or the information obtained by the Client through the Platform will meet the Client's requirements;
(c) the Platform will be free from Vulnerabilities or Viruses; or (d) the Platform or Documentation will comply with any Heightened Cybersecurity Requirements.
7.3.2 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 Client acknowledges that the Platform and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 The Contract shall not prevent Artos from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.
7.5 Artos warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.
7.6 Artos shall follow its archiving procedures for Client Data, a summary of which Artos shall provide to the Client upon request. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy against Artos shall be for Artos to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Artos in accordance with its archiving procedures. Artos shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Artos to perform services related to Client Data maintenance and back-up for which it shall remain fully liable).
7.7 If Artos’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Client (and/or any of its Authorised Users) (“Client Default”) Artos shall:
7.7.1 not be in breach of the Contract;
7.7.2 not be responsible for any injury, loss, damage, cost or expense suffered by the Client and/or any Authorised User if and to the extent that it is caused by such Client Default;
7.7.3 be entitled to an extension of any affected time for performance of its relevant obligations under the Contract; and
7.7.4 be entitled to charge for any additional charges, expenses and costs arising from such Client Default and the Client shall compensate Artos for the same.
8.1 The Client shall:
8.1.1 provide Artos with: (a) all necessary co-operation in relation to the Contract; and
(b) all necessary access to such information as may be required by Artos; in order to provide access to the Platform, including but not limited to Client Data, security access information and configuration services;
8.1.2 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
8.1.3 carry out all other Client responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, Artos may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Platform and the Documentation in accordance with the Contract and shall be responsible for any Authorised User's breach of the Contract;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Artos, its contractors and agents to perform their obligations under the Contract, including without limitation the provision of access to the Platform;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by Artos from time to time; and
8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Artos's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
8.2 The Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
CHARGES AND PAYMENT
9.1 The Client shall pay the Subscription Fee to Artos in accordance with this clause 9. For the avoidance of doubt, the Client shall not be required to pay the Subscription Fee or any other fees for its use of and access to the Platform and Documentation during the Initial Term.
9.2 The Client shall, prior to the Subscription Commencement Date provide to Artos valid, up-to-date and complete credit card details or approved purchase order information acceptable to Artos and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:
9.2.1 its credit card details to Artos, the Client hereby authorises Artos to bill such credit card: (a) on the Subscription Commencement Date for the Subscription Fee payable in respect of the Subscription Term; and
(b) subject to clause 14.3, on the commencement of each Renewal Term for the Subscription Fee payable in respect of that Renewal Term;
9.2.2 its approved purchase order information to Artos, Artos shall invoice the Client: (a) on the Subscription Commencement Date for the Subscription Fee payable in respect of the Subscription Term; and
(b) subject to clause 14.3, on the commencement of each Renewal Term for the Subscription Fee payable in respect of that Renewal Term, and the Client shall pay each invoice immediately upon receipt of such invoice.
9.3 If Artos has not received payment within two (2) days after the Client’s receipt of any invoice, and without prejudice to any other rights and remedies of Artos:
9.3.1 Artos may, without liability to the Client, disable the Client's password, account and access to all or part of the Platform and Artos shall be under no obligation to provide access to any or all of the Platform while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Artos's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in the Contract:
9.4.1 shall be payable in pounds sterling;
9.4.2 are non-cancellable and non refundable;
9.4.3 are exclusive of value added tax, which shall be added to Artos's invoice(s) at the appropriate rate.
9.5 Artos shall be entitled to increase the Subscription Fee at any stage during the Subscription Term with fourteen (14) days' prior notice to the Client, such increase to take effect at the start of the next Renewal Term.
10.1 The Client acknowledges and agrees that Artos and/or its licensors own all Intellectual Property Rights in the Platform and the Documentation. Except as expressly stated herein, the Contract does not grant the Client any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Platform or the Documentation.
10.2 Artos confirms that it has all the rights in relation to the Platform and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party's Confidential Information shall not be deemed to include:
11.1.1 information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party's lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.2 Client Data which the Client chooses to disclose and/or make available to Artos and/or other users of the Platform.
11.2 Subject to clause 11.4 and clause 11.6, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Contract.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Client acknowledges that details of the Platform, and the results of any performance tests of the Platform, constitute Artos's Confidential Information.
11.6 The parties acknowledge that, subject to clause 11.1.2, the Client Data is the Confidential Information of the Client, provided that Artos may use Client Data:
11.6.1 for its own internal purposes to better understand its clients’ use of the Platform; and
11.6.2 to collate and aggregate it with data from other clients with access to the Platform, in order to provide aggregated analysis to the Client and other clients with access to the Platform on the business practices of users of the Platform.
11.6.3 we may also write certain non identifiable data about your business, products and activities on a public blockchain to allow other companies to find and do business with you.
11.7 The parties agree and acknowledge that Artos shall be permitted to:
11.7.1 make public announcements concerning the Contract;
11.7.2 refer to the Client as a client of Artos in its promotional and marketing material and on its website; and/or
11.7.3 use the Client’s trademarks and/or logos in its promotional and marketing material and on its website in order to refer to the Client as a client of Artos.
11.8 The above provisions of this clause 11 shall survive termination of the Contract, however arising.
12.1 The Client shall defend, indemnify and hold harmless Artos against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Platform and/or Documentation, provided that:
12.1.1 the Client is given prompt notice of any such claim;
12.1.2 Artos provides reasonable co operation to the Client in the defence and settlement of such claim, at the Client's expense; and
12.1.3 the Client is given sole authority to defend or settle the claim.
12.2 Artos shall defend the Client, its officers, directors and employees against any claim that the Client's use of the Platform or Documentation in accordance with the Contract infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
12.2.1 Artos is given prompt notice of any such claim;
12.2.2 the Client provides reasonable co operation to Artos in the defence and settlement of such claim, at Artos's expense; and
12.2.3 Artos is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Artos may procure the right for the Client to continue using the Platform, replace or modify the Platform so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on written notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
12.4 In no event shall Artos, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
12.4.1 a modification of the Platform or Documentation by anyone other than Artos; or
12.4.2 the Client's use of the Platform or Documentation in a manner contrary to the instructions given to the Client by Artos; or
12.4.3 the Client's use of the Platform or Documentation after notice of the alleged or actual infringement from Artos or any appropriate authority.
12.5 The foregoing and clause 13.3.2 state the Client's sole and exclusive rights and remedies, and Artos's (including Artos's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality
LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in the Contract:
13.1.1 the Client assumes sole responsibility for contracts entered into by the Client and/or products sold or purchased by the Client via the Platform, results and/or information obtained from the use of the Platform and the Documentation by the Client, and for conclusions drawn from such use. Artos shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Artos by the Client in connection with the Platform, or any actions taken by Artos at the Client's direction;
13.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
13.1.3 the Platform and the Documentation are provided to the Client on an "as is" basis.
13.2 Nothing in the Contract excludes the liability of Artos:
13.2.1 for death or personal injury caused by Artos's negligence; or
13.2.2 for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
13.3.1 Artos shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
13.3.2 Artos's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fee paid by the Client during the twelve (12) months immediately preceding the date on which the claim arose.
TERM AND TERMINATION
14.1 The Contract shall, unless otherwise terminated as provided in this clause 14 or otherwise under these Conditions, commence on the Effective Date and shall continue for a period of one (1) month and shall automatically extend for one (1) month at the end of the first month and at the end of each subsequent month (collectively the “Initial Term”) unless:
14.1.1 a Subscription Term is agreed between the parties in accordance with clause 14.2; or
14.1.2 either party terminates the Contract on written notice to the other party at any time, in which case the Contract shall terminate at the end of the month in which such notice was served.
14.2 Artos may, no less than fourteen (14) days prior to the end of any Contract month during the Initial Term, give written notice to the Client that it intends to impose an obligation on the Client to pay a specified Subscription Fee for its continued access to the Platform and the Documentation (“Subscription Fee Notice”), in which case:
14.2.1 the Client shall notify Artos within seven (7) days of the date of the Subscription Fee Notice that it wishes to terminate the Contract, in which case the Contract shall terminate at the end of the Contract month in which the Subscription Fee Notice was served; or
14.2.2 the Client shall notify Artos within seven (7) days’ of the date of the Subscription Fee Notice that it is willing to pay the Subscription Fee, and the parties will confirm whether the Client is to enter into a Subscription Term of twelve (12) months (“Annual Subscription”) or one (1) month (“Monthly Subscription”) for its continued access to the Platform and the Documentation, in which case the Subscription Term shall commence on the date following the end of the Contract month in which the Subscription Fee Notice was served (“Subscription Commencement Date”); or
14.2.3 if the Client fails to notify Artos within seven (7) days’ of the date of the Subscription Fee Notice that it either wishes to terminate the Contract or pay the Subscription Fee, the Client shall be deemed to have agreed to enter into a Monthly Subscription for its continued access to the Platform and the Documentation, in which case the Subscription Term shall commence on the date following the end of the Contract month in which the Subscription Fee Notice was served (“Subscription Commencement Date”).
14.3 Where the parties have entered into a Subscription Term in accordance with clause 14.2, the Contract shall, unless:
14.3.1 otherwise terminated as provided in this clause 14 or otherwise under these Conditions; or
14.3.2 either party terminates the Contract on written notice to the other party at any time prior to the expiry of the Subscription Term or any subsequent Renewal Term, in which case the Contract shall terminate upon the expiry of the Subscription Term or applicable Renewable Term, continue for the Subscription Term from the Subscription Commencement Date and shall continue thereafter for successive periods of one (1) month in the case of a Monthly Subscription or twelve (12) months in the case of an Annual Subscription, from the monthly or annual (as applicable) anniversary of the Subscription Commencement Date (each a “Renewal Term”) and any reference to the Subscription Term shall be deemed to include any subsequent Renewal Terms.
14.4 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:
14.4.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than two (2) days after being notified in writing to make such payment;
14.4.2 the other party commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
14.4.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
14.4.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.4.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
14.4.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.4.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
14.4.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
14.4.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.4.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
14.4.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.4.3 to clause 14.4.10 (inclusive);
14.4.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.4.13 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
14.4.14 there is a Change of Control of the other party.
14.5 On termination of the Contract for any reason:
14.5.1 all licences granted under the Contract shall immediately terminate and the Client shall immediately cease all use of the Platform and/or the Documentation;
14.5.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.5.3 Artos may destroy or otherwise dispose of any of the personal data in its possession unless Artos receives, no later than ten (10) days after the effective date of the termination of the Contract, a written request for the delivery to the Client of the then most recent back-up of such personal data. Artos shall use reasonable commercial endeavours to deliver the back-up to the Client within thirty (30) days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Artos in returning or disposing of such personal data; and
14.5.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
15.1 Artos shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock outs or other industrial disputes (whether involving the workforce of Artos or any other party), failure of a utility service or transport or telecommunications network, flood, drought, earthquake or other natural disaster, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
16.1 Variation: As the platform evolves we may change these Terms and Conditions and the End User Agreement. In case we make a material change we will give the Client and/or Authorised Users a written notice with reasonable notice prior to the change taking effect. The materially revised Terms and Conditions and/or End User Agreement will become effective on the date set forth in the written notice, and all other changes will become effective upon posting of the change. The use of the platform after the effective date will constitute the Client’s and/or End User’s acceptance of the revised Terms and Conditions and/or End User Agreement.
16.2 Waiver: No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.3 Rights and Remedies: Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
16.4.1 If any provision or part-provision of the Contract 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 the Contract.
16.4.2 If any provision or part-provision of the Contract is deemed deleted under clause 16.4.1, 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.
16.5 Entire Agreement:
16.5.1 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.
16.5.2 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.
16.5.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
16.6 Assignment & Other Dealings:
16.6.1 The Client shall not, without the prior written consent of Artos, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.6.2 Artos may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.7 No Partnership or Agency: Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.8 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.
16.9.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered: (a) by hand or by pre-paid first-class post or other next working day delivery service at, in the case of Artos, its registered address and, in the case of the Client, the address specified in the Client’s Application; or (b) by email to, in the case of Artos, email@example.com and, in the case of the Client, the email address specified in the Client’s Application.
16.9.2 Any notice or communication shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) 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 (c) if sent by email at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
16.9.3 This clause 16.9 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.
16.10 Governing Law & Jurisdiction: 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. 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.