Terms and Conditions

PARTIES

  1. GENTIAN LIMITED incorporated and registered in England and Wales with company number 12535062 whose registered office is at 3rd Floor, Waverley House, 7-12 Noel Street, London, United Kingdom, W1F 8GQ (the "Supplier");

  2. [FULL CUSTOMER COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (the "Customer").

BACKGROUND

  1. The Supplier is in the business of providing satellite generated data for the purposes of mapping biodiversity in set locations. The Customer requires the use of such data. 

  2. The Supplier owns or is licensed to use and sub-license (as contemplatedbut only in the circumstances permitted by this Agreement) the copyright and any database rights in the Supplier Data. The Customer is not authorised to resell the Data, as set out in this Agreement.

  3. The Supplier has agreed to provide the Services on the terms set out in this Agreement.

  4. As part of the Services, the Supplier has agreed to license to the Customer the use of all copyright and database rights in the Supplier Data for a specific business purpose on the terms set out in this Agreement.

IT IS HEREBY AGREED

  1. Interpretation

    1. The definitions and rules of interpretation in this clause apply in this Agreement and in any other agreement between the parties.

"Accounting Period"; the [12]-month period commencing on the Commencement Date, each subsequent [12]-month period and the final period commencing on the date following the end of the last complete [12]-month period before the date of termination of this Agreement and ending on the date of termination.

"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 specified in Part 2 of Schedule 1.

"Commencement Date"; the date specified in Part 1 of Schedule 1.

"Confidential Information"; all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives in connection with this Agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.

"Customer System"; any information technology system or systems owned or operated by the Customer from which Data is received in accordance with this Agreement.

"Customer User"; any employee of the Customer authorised by the Customer to access and use the Services (wholly or in part), whether using their own unique identifier provided by the Supplier or otherwise.

"Customer User Restrictions"; the obligations set out in Schedule 2.

"Data"; the data or information, in whatever form including images, still and moving, and sound recordings, the provision of which comprises the Services (wholly or in part).

"Derived Data"; any Data (wholly or in part) Manipulated to such a degree that it:

  1. cannot be identified as originating or deriving directly from the Data or the Services and cannot be reverse-engineered such that it can be so identified; and

  2. is not capable of use substantially as a substitute for the Data or the Services.

"Distribute"; to make Data accessible (including the provision of access through a soft copy report, database or other application populated with the Data, reselling, sub-licensing, transferring or disclosing the Data) by any means, including any electronic means.

"Good Industry Practice"; in relation to any undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight and judgement and the making of any expenditure that would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances.

"Initial Period"; a period of [12] months commencing on the Commencement Date.

"Intellectual Property Rights"; all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

"Licence"; the licence granted in clause 13.

"Mandatory Policies"; the Supplier's business policies and codes listed in Schedule 3, as amended by notification to the Customer from time to time.

"Manipulate"; to combine or aggregate the Data (wholly or in part) with other data or information or to adapt the Data (wholly or in part).

"Manipulated Data"; any Data which has been Manipulated. Manipulated Data includes any Derived Data.

"Materials"; any hardware, Software or documents supplied by the Supplier under this Agreement, including the materials referred to in clause 8.5.

"Mitigate"; the taking of such reasonable steps that would be taken by a prudent Supplier in accordance with Good Industry Practice to mitigate against the incident in question, which may include (in the case of a Vulnerability) coding changes, but could also include specification changes (for example, removal of affected protocols or functionality in their entirety), provided these are approved by the Customer in writing in advance, and the terms Mitigated and Mitigation shall be construed accordingly.

"Normal Business Hours"; 9.00 am to 5.30 pm GMT on a Business Day.

“Order Form”; has the meaning given at Schedule 1.

"Permitted Use"; internal business use only (which shall not include the use of the Data, Manipulated Data or the Materials by, or for the benefit of, any person other than an employee of the Customer).

"Release"; generally available upgrades and enhancements to the Data or Software.

"Representatives"; in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

"Renewal Period"; each successive 12-month period after the Initial Period for which this Agreement is renewed.

"Returns"; the returns to be submitted under Part 2 of Schedule 1.

"Security Feature"; any security feature including any key, PIN, password, token or smartcard.

"Services"; the services to be supplied by the Supplier under this Agreement as described in Part 3 of Schedule 1 including the supply of any Data or Materials.

"Software"; any software provided by the Supplier to enable the Services to be used including any Releases, including without limitation any online Supplier platform in use from time to time.

"Term"; the Initial Period and any Renewal Periods.

"Unauthorised Use"; any use of the Services (including, for the avoidance of doubt, use of the Data or Materials) which is not in accordance with, or permitted under, this Agreement, including any use which does not comply with the scope or conditions set out in clause 13, or is in breach of the Customer User Restrictions.

"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 rearranging, 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 confidentiality, integrity, or availability.

  1. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

  2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

  3. The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the schedules.

  4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

  5. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

  6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

  7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

  8. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

  9. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

  10. A reference to writing or written includes email.

  11. References to clauses and schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs of the relevant schedule.

  12. Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.

  13. If there is any uncertainty between:

    1. any provision contained in the body of this Agreement and any provision contained in the Schedules or appendices, the provision in the body of this Agreement shall prevail; and

    2. the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the schedules or appendices, the provision contained in the schedules or appendices shall prevail.

  1. Scope

During the Term the Supplier shall supply the Services to the Customer and the Customer shall pay the Charges and use the Services.

  1. Connection

    1. The Supplier shall use reasonable efforts to make connection toprovide the Services available from on the Commencement Date.

    2. The Customer shall ensure that it promptly complies with any minimum hardware or software or application configuration requirements specified by the Supplier for the purpose of establishing connectivity between the Customer System and the Servicesthe Customer properly receiving the Services to the Customer System.

    3. Each party shall bear its own costs of establishing that connectivity.

    4. The Supplier shall promptly supply any Releases as applicable to the Customer and the Customer shall promptly install them.

    5. The Supplier shall ensure that each Release shall Mitigate against any known Virus or Vulnerability affecting the Data or Software since the last Release provided under clause 3.34.

  2. Services

    1. During the Term the Supplier shall supply the Services to the Customer.

    2. Subject to clause 5.6, the Supplier may change at any time, with as much prior notice to the Customer as is reasonably practicable:

      1. the content, format or nature of the Services; and

      2. the means of access to the Services,

so long as the Services provided (including the provision of any Data or Materials) are in a form which can be used by the Customer for its stated purposes, and if that is not the case, either party can terminate this agreement with 30 days notice. 

  1. The Supplier will use its best endeavours to ensure the continuity of the Services at all times in accordance with any relevant policies agreed in advance between the parties in relation to business continuity and disaster recovery with a view to ensuring the continuity and availability of the Data, and any of the Customer's services which rely on, or utilise the Data.

  1. Charges

    1. For the performance of the Services, the Customer shall pay to the Supplier the Charges.

    2. The Charges shall be due and payable in full to the Supplier monthly in advanceon receipt of the Services (including, for the avoidance of doubt, receipt of the relevant Data or Materials).

    3. Time shall be of the essence regarding the Customer's obligations to make payments in accordance with this clause 5 and such obligations are material obligations for the purpose of clause 18.3(b).

    4. The Supplier may charge interest at an annual rate of [4]% above the base rate of [GENTIAN’S BANK], calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by the Supplier of the full amount, whether before or after judgment.

    5. All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.

    6. Subject to clause 5.7, the Supplier may, at any time after the first anniversary of the Commencement Date, by giving 90 days' prior written notice, vary the Charges or the basis on which they are calculated.

    7. The Charges in respect of any Service may not be reviewed more than once in each 12-month period commencing on the Commencement Date or any anniversary of that date.

    8. The Customer may terminate the relevant Service from the date on which any variation under clause 5.6 is intended to take effect, provided that the Customer gives the Supplier written notice of termination of that Service within 60 days of the date of the Supplier's notice, subject to Charges for all Services received to the date of termination remaining due and payable., in the following circumstances:

      1. where the variation results in an increase in the Charges greater than that of the Retail Price Index (All Items) calculated by the Office for National Statistics for the period from the Commencement Date (in the case of the first increase) or the date on which the immediately preceding increase came into effect under this clause 5 (in the case of the second or any subsequent increase) up to the date of the notice of variation, plus 5%; and

      2. the Customer can show that the variation in question will result in a material reduction in the rights granted under clause 13.1 in respect of the Services or the relevant Service,

in which case, the Customer shall be entitled to a refund of any Charges already paid for the Services or that Service (as the case may be) in respect of any period following termination under this clause. 

  1. Audit

    1. The Customer shall keep, in paper and electronic form, at its normal place of business detailed, accurate and up-to-date records (Records) showing, during the previous [12] months the steps taken by the Customer to comply with this Agreement, including the Customer User Restrictions. The Customer shall ensure that the Records are sufficient to enable the Supplier to verify the Customer's compliance with its obligations pursuant to this clause 6.

    2. In the case of any complaint by the Customer about the quality or veracity or accessibility of the Services, tThe Customer shall permit the Supplier and its third party representatives (including its designated auditor) to:

      1. gain (physical and remote electronic) access to, and take copies of, the Records relevant records and any other information held at the Customer's premises or on the Customer System and to deploy reasonable online audit tools as part of the Services for these purposes; and

      2. inspect all relevant rRecords and Customer Systems relating to the use, Distribution, permissioning and control of the Data and the Services,

for the purpose of auditing the accuracy of the Returns and the Customer's compliance with its obligations under this Agreement including the Customer User Restrictions. Such audit rights shall continue for [three] years after termination of this Agreement.investigating the complaint made. The Customer shall give all necessary assistance to the conduct of such audits during the term of this Agreement and for a period of [three] years after termination of this Agreementinvestigations. This clause survives the termination of this agreement. 

  1. The audit rights provided in clause 6.12 shall (in the case of physical audits) only be exercised on reasonable notice during Normal Business Hours., but without notice in case of remote audits or any reasonably suspected breach of this Agreement by the Customer.

  1. Unauthorised use

If any Unauthorised Use is made of the Services and such use is attributable to the act or default of, or through, the Customer (including breach of any Customer User Requirements) then, without prejudice to the Supplier's other rights and remedies, the Customer shall immediately be liable to pay the Supplier an amount equal to the Charges that the Supplier would have charged, had the Supplier 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 5.4 from the date of that unauthorised use to the date of payment.

  1. Confidentiality

    1. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives whether before or after the date of this Agreement in connection with this Agreement, including but not limited to:

      1. the terms of this Agreement or any agreement entered into in connection with this Agreement;

      2. any information that would be regarded as confidential by a reasonable business person relating to:

        1. the business, assets, affairs, customers, clients, suppliers, plans , intentions, or market opportunities of the disclosing party; and

        2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;

      3. any information developed by the parties in the course of carrying out this Agreement; and

      4. any information detailed in the Schedules.

    2. The provisions of this clause shall not apply to any Confidential Information that:

      1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 8);

      2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

      3. was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

      4. the parties agree in writing is not confidential or may be disclosed.

    3. Each party shall keep the other party's Confidential Information confidential and shall not:

      1. use any Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement (Permitted Purpose); or

      2. disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

    4. A party may disclose the other party's Confidential Information to those of its Representatives who need to know that Confidential Information for the Permitted Purpose, provided that:

      1. it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and

      2. at all times, it is responsible for the Representatives' compliance with the confidentiality obligations set out in this clause 8.

    5. The Customer acknowledges that the Supplier's Confidential Information includes any software or other materials created by the Supplier in connection with the Services.

    6. 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 8, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

    7. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information, other than those expressly stated in this Agreement, are granted to the other party, or are to be implied from this Agreement.

    8. The provisions of this clause 8 shall continue to apply after termination of this Agreement.

  2. Announcements

No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

  1. Security and passwords [and watermarks]

    1. The Customer shall ensure that the Data and Materials are kept secure [by using the Security Features] and in an encrypted form, and shall implement security practices and systems in accordance with Good Industry Practice to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Data and the Materials. [Where any Data or Materials contains a Supplier watermark and/or copyright notice, the Customer shall not interfere with and keep intact and visible such watermark and/or copyright notice.]

    2. Where the Supplier uses Security Features in relation to the Services (wholly or in part), the Security Features must, unless the Supplier notifies the Customer otherwise, be kept confidential by the Customer and not be lent, shared, transferred or otherwise misused.

    3. If the Customer becomes aware of any misuse of any Data or the Materials, or any security breach in connection with this Agreement that could compromise the security or integrity of the Data or the Materials or otherwise adversely affect the Supplier or if the Customer learns or suspects that any Security Feature has been compromised, revealed to or obtained by any unauthorised person:

      1. the Customer shall, at the Customer's expense, promptly notify the Supplier and fully co-operate with the Supplier to remedy the issue as soon as reasonably practicable; and

      2. the Supplier may suspend the Customer's rights under this Agreement until the misuse or security breach or unauthorised disclosure or compromise of the Security Features is remedied.

    4. The Customer agrees to co-operate with the Supplier's reasonable security investigations.

    5. The Supplier may change Security Features on notice to the Customer or the Customer Users for security reasons.

  2. Data protection

[TO INSERT APPROPRIATE DATA PROTECTION CLAUSES].The Services do not include the processing of personal data by either party, except minimal processing between their respective staff members about each other as a necessary result of the provision of the Services. Each party will make available its relevant privacy notice which covers business to business contacts. 

  1. Export and Compliance with policiescontrol

    1. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States or United Kingdom export laws and regulations, to any country for which the United States United Kingdom or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

    2. Each party undertakes:

      1. contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it which substantially replicates the one set out in clause 12.1; and

      2. 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.

    3. [In performing its obligations under this Agreement the Customer shall comply with the Mandatory Policies.]

  2. Licence

    1. Subject always to the Customer complying with the Customer User Restrictions, the Supplier grants to the Customer a non-exclusive, non-transferable, revocable, licence for the Permitted Use only during the Termfor three calendar years following provision of the Services or other notification to either party to the other that the Data or Materials are out of date in light of real time events, circumstances or developments (after which time or notification, the Customer may not use the Services provided and must purchase updated Services under these terms), to:

      1. access, view and Manipulate Data and create Derived Data;

      2. store the Data and Manipulated Data on the Customer System;

      3. distribute the Data and Manipulated Data to Customer Users on the Customer System; and

      4. use (but not modify or Distribute to third parties) the Materials in support of the activities referred to in this clause 13.1.

    2. Except as expressly provided in this Agreement, the Customer shall not:

      1. use the Services (wholly or in part) in its products or services save where the use of the Data or Materials is clearly accompanied by an acknowledgement that the Supplier is the author of such Data or Materials; or

      2. redistribute the Services (wholly or in part).

    3. The Customer shall observe the Customer User Restrictions.

  3. Intellectual property rights ownership

    1. The Customer acknowledges that:

      1. all Intellectual Property Rights in the Data and the Materials are the property of the Supplier and the Supplier retains all rights to use and exploit the Data and the Materials for any purpose at its sole discretion, including without limitation to sell such data and materials to any third party;

      2. it shall have no rights in or to the Data or the Materials other than the right to use them in accordance with the express terms of this Agreement; and

      3. the Supplier has made and will continue to make substantial investment in the obtaining, verification, selection, co-ordination, development, presentation and supply of the Data; [and

      4. any goodwill generated though the Customer's use of the Gentian Supplier trade marks shall belong only to the Supplier.

    2. The Customer assigns to the Supplier, and shall assign to it, with full title guarantee all Intellectual Property Rights in any development of the Materials and in any Manipulated Data it may create, by way of future assignment.

    3. The Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, at the Supplier's cost, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement, including clause 14.2.

    4. The Intellectual Property Rights assigned to the Supplier under clause 14.2 shall be deemed to be included in the Licence from the date when such rights arise.

    5. The Customer shall co-operate with the Supplier to protect the goodwill and reputation of the Services and, without limitation, shall comply with paragraph 1.2 of Schedule 2.

    6. In addition to any similar obligations above, aAny display of the Services by the Customer shall credit, wherever technically and commercially feasible, the Supplier, or any other source of the Data specified by the Supplier as the source of the Data.

    7. The Customer acknowledges that reference in any element of the Materials 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 Materials authorised by this Agreement.

  4. Intellectual property rights obligation

    1. The Supplier undertakes to defend the Customer from and against any claim or action that the provision, receipt or use of the Services (wholly or in part) infringes any UK Intellectual Property Right of a third party (IPR Claim) and shall be responsible for any losses, damages, costs (including all reasonably incurred legal fees) and expenses reasonably incurred by or awarded against the Customer as a result of, or in connection with, any such IPR Claim, provided that, if any third party makes an IPR Claim, or notifies an intention to make an IPR Claim against the Customer, the Customer shall:

      1. give written notice of the IPR Claim to the Supplier as soon as reasonably practicable;

      2. not make any admission of liability in relation to the IPR Claim without the prior written consent of the Supplier;

      3. at the Supplier's request and expense, allow the Supplier to conduct the defence of the IPR Claim including settlement; and

      4. at the Supplier's expense, co-operate and assist to a reasonable extent with the Supplier's defence of the IPR Claim.

    2. Clause 15.1 shall not apply where the IPR Claim in question is attributable to:

      1. possession, use, development, modification or retention of the Services (wholly or in part) by the Customer other than in accordance with this Agreement;

      2. the Customer's failure to provide a suitable environment for connecting the Customer System to the Services in breach of clause 3.2;

      3. use of the Services (wholly or in part) in combination with any hardware, software or data not supplied or specified by the Supplier to the extent that the infringement would have been avoided by the use of the Services (wholly or in part) not so combined;

      4. use of a non-current Release to the extent that the infringement would have been avoided by the use of the current Release.

    3. If any IPR Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

      1. procure for the Customer the right to continue using, developing, modifying or retaining the Data or the Materials (wholly or in part) in accordance with this Agreement;

      2. modify the Data or the Materials (wholly or in part) so that they cease to be infringing;

      3. replace the Data or the Materials (wholly or in part) with non-infringing items; or

      4. terminate this Agreement immediately by notice in writing to the Customer and refund any Charges for the relevant Accounting Period paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Data or Materials to the date of termination) on return of the Data or the Materials and all copies of each of them.

    4. This clause 15 constitutes the Customer's sole and exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 17.4.

  5. Warranties

    1. The Supplier warrants that it has the right to license the receipt and use of Data and Materials as specified in this Agreement.

    2. Except as expressly stated in this Agreement, 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. Without limiting the effect of clause 16.2, the Supplier does not warrant that:

      1. the supply of the Services will be free from interruption;

      2. the Services will run on the Customer System;

      3. the Data is accurate, complete, reliable, secure, useful, fit for purpose or timely; or

      4. the Data has been tested for use by the Customer or any third party or that the Data will be suitable for or be capable of being used by the Customer or any third party.

  6. Limitation of liability

    1. Neither party excludes or limits liability to the other party for:

      1. fraud or fraudulent misrepresentation;

      2. death or personal injury caused by negligence;

      3. a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (if such legislation is deemed  relevant (as the Supplier does not agree that the Services (including any Data or Materials in soft copy form) are goods)); or

      4. any matter in respect of which it would be unlawful for the parties to exclude liability; or 

      5. in the case of the Customer’s breach, where it has resold the Services or any part of them or made the Services or any part of them available to third parties to resell (and any of which action is a material breach of this agreement)..

    2. Subject to clause 17.1, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

      1. any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;

      2. any loss or corruption (whether direct or indirect) of data or information;

      3. loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or

      4. any loss or liability (whether direct or indirect) under or in relation to any other contract.

    3. Clause 17.2 shall not prevent claims, which fall within the scope of clause 17.4, for:

      1. direct financial loss that are not excluded under any of the categories set out in clause 17.2(a); or

      2. tangible property or physical damage.

    4. Subject to clause 17.1, the Supplier's either party’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall in all circumstances be limited to £[AMOUNT]200% of the gross value in revenue of this agreement to the Supplier  in the aggregate in any year of professional indemnity insurance.

    5. Any dates quoted for delivery of the Services are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Services that is caused by an event within the scope of clause 19 or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Services or the Customer's failure to comply with clause 3.2.

  7. Term and termination

    1. This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with agreement (including clause 18.3 or this clause 18.1), this Agreement shall continue for the Initial Period and shall automatically extend for a Renewal Period at the end of the Initial Period and at the end of each Renewal Period. Either party may give written notice to the other party, not later than [60 days] before the end of the Initial Period or the relevant Renewal Period, to terminate this Agreement at the end of the Initial Period or the relevant Renewal Period, as the case may be.

    2. The Customer may terminate this Agreement in respect of the Services (wholly or in part) in accordance with clause 5.8.

    3. Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

      1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make that payment;

      2. the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

      3. the other party:

        1. suspends, or threatens to suspend, payment of its debts;

        2. is unable to pay its debts as they fall due or admits inability to pay its debts;

        3. (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

        4. (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or

        5. (being a partnership) has any partner to whom any of clause (i) apply;

      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 (in the case of a company) 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;

      5. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

      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 (being a company, partnership or limited liability partnership) 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;

      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);

      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;

      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;

      10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party's assets and that attachment or process is not discharged within 14 days;

      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 (c) (inclusive);

      12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

      13. there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

    4. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

    5. Termination or expiry of this Agreement 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 agreement which existed at or before the date of termination or expiry.

    6. On any termination of this Agreement for any reason or expiry of the Term, the Customer shall immediately pay any outstanding amounts owed to the Supplier under this Agreement and, within a reasonable period of termination or expiry ensure that there is no further use of the Materials or Data in any of the Customer's products or applications, save within the time period allowed by clause 13.1.

    7. On any termination of this Agreement for any reason or expiry of the Term:

      1. each party shall as soon as reasonably practicable return, delete or destroy (as directed in writing by the other party) all data, information, software, and other materials provided to it by the other party in connection with this Agreement including all materials containing or based on the other party's Confidential Information; and

      2. without limiting the effect of clause 18.7(a), the Customer shall as soon as reasonably practicable ensure that all Data and Manipulated Data is deleted from the Customer System,

and any electronic data shall be considered deleted, for the purpose of this clause 18.7, where it has been put beyond use by the deleting party, save for any rights to continue to use the Services as allowed under clause 13.1..

  1. On any termination of this Agreement for any reason or expiry of the Term, where any paid for Services have not been received, the Supplier shall refund any relevant Charges for the relevant Accounting Period paid by the Customer as at the date of termination or expiry (less a reasonable sum in respect of the Customer's use of the Data or the Materials to the date of termination), except where the ground for termination is material breach by the Customer under clause 18.3(b), in which case the Customer shall not be entitled to any refund.

  2. Each party shall provide written confirmation (in the form of a letter signed by a director) of compliance with clause 18.7(a) and also, in the case of the Customer only, clause 18.7(b) no later than 14 days after termination of this Agreement.

  3. If a party is required by any law, regulation, or government or regulatory body to retain any documents or materials that it would otherwise be required to return or destroy under clause 18.7, it shall notify the other party in writing of that retention, giving details of the documents or materials that it must retain. That party shall not be in breach of clause 18.7 with respect to the retained documents or materials, but clause 8 shall continue to apply to them.

  1. Force majeure

Neither party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for [two months], the party not affected may terminate this Agreement by giving 14 days' written notice to the affected party. 

  1. Assignment

    1. This Agreement is personal to the Customer and it shall not assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the Supplier (which is not to be unreasonably withheld or delayed).

    2. The Customer confirms it is acting on its own behalf and not for the benefit of any other person.

    3. The Supplier may at any time assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement, provided that it gives prior written notice of such dealing to the Customer.

  2. Waiver

    1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

    2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

  3. Remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Notice

    1. Any notice given to a party under or in connection with this contract shall be in writing and shall be:

      1. 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

      2. sent by email to the following addresses (or an address substituted in writing by the party to be served):

        1. Supplier: [karen@gentian.team].

        2. Customer [EMAIL ADDRESS].

    2. Any notice shall be deemed to have been received:

      1. if delivered by hand, at the time the notice is left at the proper address;

      2. 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

      3. if sent by email, on receipt of acknowledgement from the recipient that the email has been received.

    3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  2. Entire agreement

    1. This Agreement and any Order Form constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them relating to its subject matter.

    2. Each party acknowledges that in entering into this Agreement 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 this Agreement.

    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

  3. Variation

Except as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. Severance

    1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

    2. If any provision or part-provision of this Agreement is deemed deleted under clause 26.1 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.

  2. No partnership or agency

    1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

  3. Third-party rights

    1. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

    2. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.

  4. Governing law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

  1. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

  1.  - Key details

  1. : Commencement Date

[insert]

  1. : Charges and Reporting

[do you have set prices based on file size etc or is it you price each report based on its requirements and difficulty etc?]

[Charges are set out and agreed in an Order Form from time to time]

  1. : Services

[DESCRIPTION OF SERVICES]The Customer shall request data from the Supplier to help it map biodiversity in geolocations which the Supplier can cover. The Supplier will agree whether or not it can satisfy such request and if so, it shall provide written confirmation (by email or otherwise) to the Customer of the Data and Materials it can provide and its cost for doing so. Where the Customer then confirms it is happy to proceed with those Services, that written confirmation of Services and Charges and acceptance of the same is known as an Order Form. Any services the Supplier undertakes at its end to produce such Data and Materials are also Services. 

  1.  - Customer User Restrictions

  1. : Customer User Restrictions

    1. Customer User Restrictions

      1. The Customer shall:

        1. limit access to the Services to the Customer Users;

        2. only make copies of the Data and the Materials to the extent reasonably necessary for the following purposes: back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing [CUSTOMER TO SUGGEST ANY OTHER REASONS FOR CREATING COPIES PARTICULAR TO ITS BUSINESS AND REASONS FOR USING THE SERVICES];

        3. not use the Services for any purpose contrary to any law or regulation or any regulatory code, guidance or request;

        4. not extract, reutilise, use, exploit, Distribute, disseminate, copy or store the Data, or the Materials for any purpose not expressly permitted by this Agreement;

        5. not copy, modify, decompile, reverse engineer or create derivative works from the Software, except to the extent permitted by any applicable law; and

        6. not do anything which may damage the reputation of the Supplier, the Data,  orMaterials or the Services, including by way of using the Data (wholly or in part) in any manner which is pornographic, racist or that incites religious hatred or violence or which in any way might reasonably connect the Supplier with allegations that its Services contribute or assist greenwashing (directly or indirectly); and

        7. .not resell (directly or indirectly) or assist (directly or indirectly) any third party to resell the Services or any part of them.

      2. The Customer shall use the Supplier's trade marks and logos in the following manner:

        1. [USE OF SUPPLIER'S TRADE MARKS IN GENERAL]

        2. [USE OF SUPPLIER'S TRADE MARKS AND LOGOS IN ADVERTISING, PACKAGING AND WEBSITES]

        3. [ATTRIBUTION STATEMENTS]

  1.  - [MANDATORY POLICIES

[LIST [AND ATTACH] THE MANDATORY POLICIES HERE]

The Mandatory Policies are:

  • [Modern Slavery and Human Trafficking Policy]

  • [Corporate and Social Responsibility Policy]

  • [Data and Privacy Policy]

  • [Ethics and Anti-Bribery Policy]

  • [Expenses Policy]

  • [Cybersecurity Policy]

  • [Business Continuity and Disaster Recovery]]