Recommend OÜ Software as a Service Agreement
These Conditions apply to the Contract between Recommend OÜ (Recommend) and the Customer.
Interpretation
The definitions and rules of interpretation in this clause apply to the Contract.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16 together with such terms and conditions as may be agreed in writing between the parties.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.
Contract: the contract between Recommend and Customer for the use (during the Trial Period) and purchase / use (during the Subscription Term) of the Services in accordance with these Conditions, together with any Documentation.
Customer: the person or firm who purchases the Services from the Recommend.
Customer Data: the data inputted by Customer, Users, or Recommend on Customer’s behalf for the purpose of using the Services or facilitating Customer’s use of the Services.
Data Protection Legislation: the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time, including the European Union’s General Data Protection Regulation (2016/679) as and when it comes into force and where applicable the guidance and codes of practice issued by the United Kingdom’s Information Commissioner. Data Controller, Data Subject, Personal Data and Data Processor shall each have the meanings given in the applicable Data Protection Legislation
Documentation: any document made available to Customer by Recommend; online via https://recommend.pro or such other web address notified by Recommend to Customer from time to time, or otherwise by Recommend to the Customer in writing, which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date immediately following the date of expiry of the Trial Period or, where a Free Trial is not applicable, the date the Services commence.
Free Trial: the supply by Recommend to Customer of the Services on a trial-only basis and without charge, for the Trial Period. The Free Trial is intended to give the parties an indication of the nature of Services required by Customer and the volume of Page Views during the Subscription Term, in order to estimate the Subscription Fee payable during the Subscription Term.
Free Trial Effective Date: the date the Free Trial commences.
Malware: 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.
Month: each full month during the Subscription Term, commencing on the month day coinciding with the Effective Date day. Monthly shall be construed accordingly.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Page Views: each request to load data of any internet site or mobile application on which the Software is installed as part of the provision of the Services.
Recommend: the Services provider, RECOMMEND OÜ, a company registered in Estonia (REG NO: 14448307, VAT NO: EE102129588) whose registered address is: Roosikrantsi tn 2-462, 10119 Tallinn, Estonia.
Services: the Software subscription services provided by Recommend to Customer under the Contract, as more particularly described in the Documentation.
Software: the online software applications owned or licensed by Recommend, including all standard upgrades and updates thereto that Recommend generally implements for all subscribers provided by Recommend as part of the Services and excluding any custom product enhancements and offerings that are not part of a standard release and that Recommend markets at an additional charge.
Subscription Fees: the subscription fees payable by Customer to Recommend for the Services, as set out in the Documentation, calculated on a ‘per Page View’ basis and payable in accordance with clause 9
Subscription Term: the period commencing on the Effective Date (or such other date as may be specified in the Documentation) and ending upon the termination of the Contract in accordance with clause 14 or the applicable Documentation, as appropriate.
Trial Period: the initial Free Trial period for Customer’s use of the Services, commencing on the Free Trial Effective Date and continuing for the Free Trial period set out in the Documentation or as otherwise agreed in writing between the parties, ending at midnight on the date of expiry of the Free Trial.
User: those employees, agents and independent contractors of Customer who are authorised by Customer to access and use the Services and the Documentation on Customer’s behalf.
Clause, schedule and paragraph headings shall not affect the interpretation of the Contract.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
A reference to writing or written includes e-mail.
References to clauses are to the clauses of these Conditions.
Services
Subject to Customer signing up for the Free Trial and /or purchasing the Services in accordance with these the Conditions:
Recommend shall, during the Trial Period and, where applicable, the Subscription Term, provide the Services and make available the Documentation to Customer on and subject to the Conditions of the Contract; and
Recommend hereby grants to Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to use the Services and the Documentation during the Trial Period and / or Subscription Term (as applicable) solely for Customer’s internal business operations.
Customer undertakes that:
it (and, if applicable, each User), shall keep a secure password for its use of the Services and Documentation, that such password shall kept confidential and changed reasonably frequently; and
it shall permit Recommend to audit the Services in order to establish that the Services are being used in accordance with the Conditions.
if any of the audits referred to in clause 2.2.2 reveal that Customer has underpaid Subscription Fees to Recommend, then without prejudice to Recommend’s other rights, Customer shall pay to Recommend an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
Customer shall not access, store, distribute or transmit any Malware, viruses, Trojan horses, spyware, worms, or other malicious, harmful code, or any material during the course of its use of the Services that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;
and Recommend reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to the Services and / or any material that breaches the provisions of this clause.
Customer shall not:
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:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
use the Services and/or Documentation to provide services to third parties; or
subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Recommend.
The rights provided under this clause 2 are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of Customer.
Services Availability and Support
During the Subscription Term, Recommend shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 10.00 pm to 6.00 am UK time; and
unscheduled maintenance performed outside Normal Business Hours, provided that Recommend has used reasonable endeavours to give Customer at least 6 Normal Business Hours’ notice in advance.
During the Subscription Term, Recommend will, as part of the Services at no additional cost to Customer, provide Customer with Recommend’s standard customer support services during Normal Business Hours.
Customer acknowledges and agrees that Recommend is not engaged in the practice of law and is not providing any legal advice. Without limiting the foregoing, Recommend does not draft any legal documents, including any privacy policy or terms of use. Legal compliance and drafting of any legal documents shall be the sole responsibility of Customer.
Free Trial
Customer acknowledges and accepts that, during the Trial Period, the Services are provided by Recommend free-of-charge, on an “as-is” and trial-only basis and as a precursor to Customer purchasing the Services for the Subscription Term, if Customer chooses to do so, at the end of the Trial Period.
Customer further acknowledges and agrees that Recommend does not guarantee that access to the Services and / or Software will always be available or uninterrupted. Recommend may, at any time during the Trial Period, at its sole discretion and without liability to Customer:
update and / or otherwise change the Services and / or Software; and
suspend, withdraw or restrict the availability of all or any part of the Services and / or Software, save that, in exercising such rights, Recommend shall not take any action that adversely affects the Customer Data.
Customer’s use of the Services during the Trial Period is at Customer’s sole risk and save as expressly set out in these Conditions and to the maximum extent permitted by law, Recommend will not be liable to Customer for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses (even if Recommend has been advised of the possibility of these damages), resulting from Customer’s use of the Services as part of the Free Trial.
Customer data
Customer shall own all right, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
Recommend shall comply with all Data Protection Legislation and good industry practice in relation backing-up and securing Customer Data. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Recommend to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Recommend. Recommend shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Recommend to perform services related to Customer Data maintenance and back-up).
Recommend shall, in providing the Services, comply with its [Privacy and Security Policy] relating to the privacy and security of Customer Data available at https://recommend.pro/privacy-policy or such other website address as may be notified to Customer from time to time, as such document may be amended from time to time by Recommend in its sole discretion.
If Recommend processes any Personal Data on Customer’s behalf when performing its obligations under the Contract, the parties record their intention that Customer shall be the Data Controller and Recommend shall be a Data Processor and in any such case:
Customer and Recommend agree that Recommend shall not transfer Personal Data to and / or process Personal Data outside the EEA without the parties first having in place a data processing agreement incorporating adequate safeguards with respect to the processing of such Personal Data;
Customer shall ensure that Customer is entitled to transfer the relevant Personal Data to Recommend so that Recommend may lawfully use, process and transfer the Personal Data in accordance with the Contract on Customer’s behalf;
Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable Data Protection Legislation;
Recommend shall process the Personal Data only in accordance with the Conditions of the Contract and any lawful instructions reasonably given by Customer from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
When performing its obligations under the Agreement, Recommend can collect the following types of visual data: end users’ images associated with the use of Service; Customer’s images from catalog listing; Customer’s images provided in any other way. If Recommend does, visual data will be anonymised for further use as part of the training set to improve quality of the Services.
Third party providers
Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Recommend makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between Customer and the relevant third party, and not Recommend. Recommend recommends that Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Recommend does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
Recommend’s obligations
Recommend undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care, in accordance with good industry practice.
The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Recommend’s instructions, or modification or alteration of the Services by any party other than Recommend or Recommend’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Recommend will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Recommend:
does not warrant that Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements; and
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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
The Contract shall not prevent Recommend 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 the Contract.
Recommend warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
Customer’s obligations
Customer shall:
provide Recommend with:
all necessary co-operation in relation to the Contract; and
all necessary access to such information as may be required by Recommend;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under the Contract;
carry out all other Customer responsibilities set out in the Contract (including the Documentation) in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the parties, Recommend may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Users use the Services and the Documentation in accordance with the Conditions of the Contract and shall be responsible for any User’s breach of the Contract;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Recommend, its contractors and agents to perform their obligations under the Contract, including without limitation, the Services;
ensure that its network and systems comply with the relevant specifications provided by Recommend from time to time;
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Recommend’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet; and
if Marketing Campaigns Service is used, Customer is responsible to comply with the following terms:
Customer has the sole responsibility for the content of messages distributed within Marketing Campaigns;
Marketing Campaigns Service shall not be used to distribute any prohibited content listed but not limited to the stated in clause 2.3;
Customer shall not message purchased, rented, borrowed, or any other third-party lists of contacts;
Customer shall only message (unless transactional or confirmation messages) contacts who explicitly consent to receive communications from the Customer. Proof of consent shall be provided to Recommend if the abuse complaint event is escalated;
Customer shall take reasonable efforts to verify email addresses of contacts who consented to receive email communications;
Unsubscribe link shall be included and clearly visible in every marketing email;
Customer shall remain within the acceptable sending metrics threshold listed in the table below. Recommend reserves the right to update the threshold rates without prior notice;
Metric
Acceptable level
Calculation basis
Hard bounce rate
⩽5%
The number of emails that may not have reached the recipient due to the hard bounce.
Spam complaint rate
⩽0.05%
The total number of abuse complaints. Abuse complaints can occur when the recipient marks your campaign as spam.
Customer shall undertake all reasonable efforts to prevent any unauthorized use of Services.
Recommend has the right to inspect or monitor the usage of the Service to ensure compliance with the current Agreement. Recommend reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to the Services and / or any material that breaches the provisions of this clause.
Charges and Payment
No Subscription Fee shall be payable for the Free Trial.
If Customer chooses to continue to receive the Services after the Trial Period, Customer shall pay the Subscription Fees to Recommend for the Services in accordance with this clause 9.
Unless otherwise agreed between the parties in advance, the Subscription Fee shall be calculated on a ‘per Page View’ basis and shall be payable Monthly in advance, based on estimated Page Views for the following Month. At the end of each Month, the Subscription Fee for the following Month shall be re-balanced and re-calculated to factor the actual Page Views and such calculation shall be factored into the Subscription Fee for the following Month. At the end of the Subscription Term, the Subscription Fee for the Subscription Term shall be reviewed and:
if Page Views have exceeded those paid for during the Subscription Term, Customer shall be liable to make up the shortfall to Recommend; and
if Page Views are lower than those paid for during the Subscription Term, Recommend shall refund the overpayment to Customer.
Customer shall, on or before the Free Trial Effective Date or, in the event of there being no Free Trial, the Effective Date, be required to set up a Customer account and provide to Recommend valid, up-to-date and complete credit card details and, if applicable and only if agreed in writing by Recommend, approved purchase order information acceptable to Recommend and any other relevant valid, up-to-date and complete contact and billing details.
Unless otherwise agreed between the parties in advance, by entering the Contract and setting up a Customer account, Customer hereby authorises Recommend to bill such credit card on or around the Effective Date and Monthly thereafter (until termination) for the Subscription Fees payable in respect of the Subscription Term (and including any balancing payment calculated on termination of the Contract):
If, for any reason:
the credit card details provided by Customer are invalid and / or Recommend is otherwise unable to take payment from Customer in respect of the Subscription Fee under this clause 9; and
Customer has not validly terminated the Contract under clause 14,
Recommend shall be entitled to invoice Customer for any Subscription Fee due and owing to Recommend by Customer.
If the parties agree in writing a payment mechanism based on Recommend invoicing Customer, Customer shall, on or before the Effective Date, provide its approved purchase order information to Recommend and Recommend shall invoice the Customer on or around the Effective Date and Monthly thereafter (until termination) for the Subscription Fees payable in respect of the Subscription Term (including any balancing payment calculated on termination of the Contract).
Each invoice shall be payable within 14 days.
If Recommend has not received payment by the within 14 days after the due date, and without prejudice to any other rights and remedies of Recommend:
Recommend may, without liability to Customer, disable Customer’s password, account and access to all or part of the Services and Recommend shall be under no obligation to provide any or all of the Services while any Subscription Fee and / or invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in the Contract:
shall be payable in pounds sterling;
are, subject to clause 13.4.2, non-cancellable and non-refundable;
are exclusive of value added tax, which shall be added to Recommend’s invoice(s) at the appropriate rate.
Recommend shall be entitled to increase the Subscription Fees giving not less than one month’s prior notice to Customer.
Proprietary Rights
Customer acknowledges and agrees that Recommend and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Contract does not grant Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
Recommend confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the Conditions of the Contract.
Confidentiality
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 information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party’s lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 11.4, 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.
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 Conditions of the Contract.
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.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Recommend’s Confidential Information.
Recommend acknowledges that Customer Data is the Confidential Information of Customer.
Unless otherwise agreed between the parties, Recommend shall be entitled to document in its marketing material, for the purpose of demonstrating examples of its past and current customers to prospective customers only, that Customer is a customer of Recommend.
The above provisions of this clause 11 shall survive termination of the Contract, however arising.
Indemnity
Customer shall defend, indemnify and hold harmless Recommend 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 Customer’s use of the Services and/or Documentation.
Recommend shall defend Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:
Recommend is given prompt notice of any such claim;
Customer provides reasonable co-operation to Recommend in the defence and settlement of such claim, at Recommend’s expense; and
Recommend is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Recommend may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.
In no event shall Recommend, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on:
a modification of the Services or Documentation by anyone other than Recommend; or
Customer’s use of the Services or Documentation in a manner contrary to the instructions given to Customer by Recommend; or
Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Recommend or any appropriate authority.
Limitation of Liability
This clause 13 sets out the entire financial liability of Recommend (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer:
arising under or in connection with the Contract;
in respect of any use made by Customer of the Services and Documentation or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
Except as expressly and specifically provided in the Contract:
Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use. Recommend shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Recommend by Customer in connection with the Services, or any actions taken by Recommend at Customer’s direction;
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
the Services and the Documentation are provided to Customer on an “as is” basis.
Nothing in the Contract excludes the liability of either party:
for death or personal injury caused by that party’s negligence; or
for fraud or fraudulent misrepresentation; or
where to do so would be unlawful.
Subject to clause 13.2 and clause 13.3:
Recommend 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
Recommend’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 Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.
Term and Termination
The Contract shall commence on the Free Trial Effective Date or, in the event that there is no Free Trial, the Effective Date. Unless terminated earlier in accordance with this clause 14, the Contract shall continue for the Trial Period (and Subscription Term, if applicable) or, in the event that there is no Free Trial, the Subscription Term.
Trial Period: At the end of the Trial Period the Contract shall automatically extend and the Subscription Term will commence, unless either party gives the other not less than seven days’ written notice to terminate the Contract before the end of the Trial Period. If such notice to terminate is given, the Contract will terminate at the end of the Trial Period.
Subscription Term: The Subscription Term shall, unless terminated otherwise in accordance with this clause 14 (or by either party giving notice during the Trial Period in accordance with clause 14.2), continue on a rolling Monthly basis until terminated by either party, giving not less than 30 days’ prior written notice to terminate the Contract before [the end of that Month]. The Contract will terminate at the end of the Month for which a valid notice period has expired.
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:
the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of [14] days after being notified in writing to do so;
the other party repeatedly breaches any of the Conditions of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Conditions of the Contract;
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;
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;
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;
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;
the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
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;
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;
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 14.4.9 (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Without affecting any other right or remedy available to it, Recommend may terminate the Contract with immediate effect by giving written notice to Customer if:
Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
there is a change of control of Customer which, in the reasonable opinion of Recommend, risks adversely affecting Recommend’s rights under the Contract.
For the purpose of this clause, control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and the expression change of control is construed accordingly.
On termination of the Contract for any reason:
all licences granted under the Contract shall immediately terminate and Customer shall immediately cease all use of the Services and/or the Documentation;
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;
Recommend may destroy or otherwise dispose of any of Customer Data in its possession unless Recommend receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to Customer of the then most recent back-up of Customer Data. Recommend shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Recommend in returning or disposing of Customer Data; and
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 agreement which existed at or before the date of termination shall not be affected or prejudiced.
Force Majeure
Recommend shall have no liability to Customer 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 Recommend or any other party), failure of a utility service or transport or telecommunications network, act of God, 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 Recommends or sub-contractors, provided that Customer is notified of such an event and its expected duration.
Variation
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
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.
Severance
If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Entire Agreement
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.
Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
Assignment
Customer shall not, without the prior written consent of Recommend, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Recommend 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.
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).
Third Party Rights
The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Notices
Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by prepaid first-class post or recorded delivery post to the other party at its address set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Documentation.
A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
Governing Law and Jurisdiction
The Contract 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. Save for the purpose of seeking and enforcing interim remedies and enforcement under the Contract by Recommend, for which the courts of England and Wales shall have non-exclusive jurisdiction, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
Conditions last updated: June 2019