THIS AGREEMENT is Version 1.10 dated 28 July 2023
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential (whether or not it is clearly labelled as such) including (but not limited to) personal data; information relating to the Customer’s or iplicit business and operations (including its suppliers, finances, information technology and security or identified as Confidential Information in clauses 12.5 and 12.6.
Customer Data: the data inputted by the Authorised Users, or iplicit on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation: the documents made available to the Customer by iplicit online via www.iplicit.com or such other web address notified by iplicit to the Customer from time to time which amongst other things sets out a description of the Services, sets out policies, and provides user instructions for the Services.
Go Live Sign Off Date: the date that iplicit has completed the Measures within a Project Initiation Document as specified in an Implementation Notice referred to in clause 2.6.
Implementation Fees: the fees payable by the Customer to iplicit as set out in the Order Form
Implementation Period: the period beginning with the date of this agreement and ending on the day before the Go Live Sign Off Date during which the Implementation Services are performed.
Implementation Services: the performance by iplicit of the Measures in accordance with the Project Initiation Document and any additional services which iplicit may in its absolute discretion agree to supply to the Customer.
Initial Subscription Term: the initial term for the Authorised users to access the Software pursuant to this agreement commencing on the date the first iplicit environment is created, often the Sandbox, or such other date as identified in the Order Form, and continuing for the next 12 months.
Measures: the design, build, data migration, testing and other configuration services to be performed and/or delivered by iplicit to the Customer to enable use of the Software.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order Form: the order form provided by iplicit to be signed by the Customer detailing the Software, Implementation Services, Services, products and quantity in relation to this agreement
Project Initiation Document: the plan incorporating the Measures and provisions relating to governance and responsibilities of the Parties and training plans and training to be supplied by iplicit, a copy of which to be initialled and dated by the Parties and as the same may be varied in writing with the written consent of the Parties from time to time.
Renewal Period: Successive periods of 12 months from the 1st anniversary of access to the Sandbox or first iplicit environment, or as separately detailed on the Order Form, which shall automatically be renewed unless the contract is terminated in accordance with clause 15.
Sandbox: an additional iplicit environment provided to the Customer in which Customer Data and Software can be tested and run securely prior to and post Go Live Sign Off Date, and which is inclusive as part of the Subscription Fees
Services: the provision to the Customer of access to the use of the Software and the Documentation on a subscription basis under this agreement via www.iplicit.com or any other website notified to the Customer by iplicit from time to time.
Software: the online and locally installed software application known as “iplicit” provided by iplicit as part of the Services.
Subscription Fees: the fees payable by the Customer to iplicit for the User Subscriptions, as set out in the Order Form.
Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.
Support Services Policy: iplicit’s policy for providing support in relation to the Services as made available at www.iplicit.com/terms or such other website address as may be notified to the Customer from time to time.
Tenant; the installed iplicit system for the Licensee in this agreement, encompassing all licensed users, companies and legal entities.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to the terms of this agreement which entitle Authorised Users to access and use the Services in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, malware, trojan horses, viruses and other similar things or devices.
1.2 References to clauses and to the Order Form are to the clauses and Order Form accompanying this agreement; clause headings shall not affect the interpretation of this agreement.
1.3 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.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes e-mail unless otherwise stated in this agreement.
1.9 In this agreement, the word “including” shall mean including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word, and the word “include” and its derivatives shall be construed accordingly.
2.1 iplicit shall perform the Implementation Services and data migration services as set out in the Order Form and Project Initiation Document.
2.2 The Customer shall provide iplicit with:
2.3 On completion of the Measures iplicit shall serve a notice on the Customer confirming that the Customer shall be able to access the Software online (Implementation Notice) initially via the Sandbox. The Implementation Notice shall also state the date of the Go Live Sign Off Date for the purposes of this agreement.
2.4 If the Customer is not able to access the Software after receiving the Implementation Notice by reason of a technical failure in the performance of the Implementation Services, it shall give iplicit a detailed description of any such inability in writing within ten (10) Business Days of receiving the Implementation Notice (an Error Notice).
2.5 With respect to any technical failure identified by the Customer in an Error Notice for which iplicit is responsible, should the Error Notice affect the Go Live Sign Off Date as stated in the Implementation Notice iplicit shall use reasonable endeavours to correct any such technical failure within a reasonable time, not to exceed ten (10) Business Days, and on completion of any corrective work shall submit a further Implementation Notice to the Customer, stating the revised Go Live Sign Off Date and the provisions of clause 2.4 shall then apply again.
2.6 If the Customer does not provide an Error Notice within the period of ten (10) Business Days described above, or if the technical failure is not one for which iplicit is responsible, the Go Live Sign Off Date as stated in the Implementation Notice shall be deemed accepted for the purpose of this agreement.
3.1 In consideration of the Subscription Fees, iplicit grants to the Customer from and including access to the Sandbox and the Go Live Sign Off Date, a non-exclusive, non-transferable, revocable right to permit the number of Authorised Users set out in the associated iplicit Order Form and any additional User Subscriptions purchased pursuant to clause 4 to use the Services during the Subscription Term only for the Customer’s internal business operations subject to the restrictions set out in this clause 3 and the other terms and conditions of this agreement.
3.2 In relation to the Authorised Users, the Customer undertakes to iplicit that:
3.3 The Customer shall use its best endeavours not to access, store, distribute or transmit any Viruses, nor access, store, distribute or transmit any material during the course of its use of the Services that is unlawful or which facilitates or promotes unlawful conduct or activity including material that is harmful, threatening, defamatory, obscene, sexually explicit, harassing, intimidating, or which causes or may cause damage or injury to any person or property and iplicit reserves the right, without liability or prejudice to its other rights and obligations, to disable the Customer’s access to any material that breaches the provisions of this clause until such time that the breach is remedied by Customer.
3.4 The Customer shall not:
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, shall promptly notify iplicit of such access and the circumstances relating to such access.
3.6 The Sandbox will remain accessible until this agreement is terminated in accordance with clause 15.
4.1 The Customer may, from time to time during the Subscription Term and with the consent of iplicit, purchase additional User Subscriptions in excess of the number of users set out in Order Form at the then prevailing fees set by iplicit in accordance with clause 10.5 and iplicit shall promptly grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.
4.2 If such additional User Subscriptions are purchased by the Customer, such fees shall be pro-rated for the remainder of the Subscription Term
5.1 iplicit shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
5.2 iplicit shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.2 iplicit shall follow its archiving procedures for Customer Data as set out in its Backup Policy (www.iplicit.com/terms) or such other website address as may be notified to the Customer from time to time, as such document may be amended by iplicit in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for iplicit to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by iplicit in accordance with the archiving procedure described in its Backup Policy. iplicit shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
6.3 iplicit shall, in providing the Services, comply with its Privacy and UK GDPR Policy relating to the privacy and security of the Customer Data available at www.iplicit.com/terms or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by iplicit in its sole discretion.
6.4 If iplicit processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and iplicit shall be a data processor and in any such case:
8.1 iplicit undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to iplicit’s instructions, or modification or alteration of the Services by any party other than iplicit or iplicit’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, iplicit will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, iplicit:
8.3 This agreement shall not prevent iplicit 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 this agreement.
8.4 iplicit warrants that it has all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
9.1 The Customer shall:
9.2 In the event of any failure or delays in the Customer’s compliance with its obligations under this agreement, iplicit may adjust any agreed timetable, delivery schedule or amounts payable and/or may suspend the Customer’s rights to access the Services as reasonably necessary to procure compliance by the Customer of its obligations.
10.1 The Subscription Fees for the Initial Subscription Term shall be due upon the creation of your first iplicit environment which is typically the Sandbox or as stated on the Order Form and then for any Renewal Period on the first day of the Renewal Period but provided the Customer is not in breach of this agreement the Customer may pay the Subscription Fees to iplicit due for the Initial Subscription Term and for any Renewal Period by equal monthly instalments in advance.
10.2 If iplicit has not received a monthly payment instalment within 30 days after the due date, and without Renewal prejudice to any other rights and remedies of iplicit, including the right to terminate this agreement:
10.3 All amounts and fees stated or referred to in this agreement and any Order Form:
10.4 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Order Form, iplicit shall charge the Customer, and the Customer shall pay iplicit’s then current excess data storage fees as made known to you. Please refer to our Fair Use Policy at www.iplicit.com/terms which may be amended by iplicit in its sole discretion from time to time.
10.5 iplicit shall be entitled to review and increase the fees payable in respect of User Subscriptions and any additional User Subscriptions purchased pursuant to clause 4.1 and/or the excess storage fees payable pursuant to clause 10.4 from time to time without notice to the Customer but subject always to clause 10.6 and provided that any annual increase shall not exceed 5% or CPI whichever is the lower, from the period beginning with the creation of your first iplicit environment which is typically the Sandbox or, if later, the date of any previous review.
10.6 Subject to clause 4.1 (pursuant to which the Customer and iplicit agree that the Subscription Fees payable for additional Authorised Users approved by iplicit prior to the end of the Initial Subscription Term or during a Renewal Period shall be payable at the then prevailing rate for additional Authorised Users), any increase in Subscription Fees following any revisions of the same shall be payable only with effect on and from the date provided by notice from iplicit to Customer and the associated Order Form shall be deemed to have been amended accordingly.
10.7 The currency conversion rate to be applied in respect of the Subscription Fees, Implementation Fees and any additional fees under this Agreement shall be the exchange rate HSBC Bank as it is published on its website applicable on the date of the payment.
10.8 The fees are based on the exchange rate mechanism set out in clause 10.7 above. Any losses caused to iplicit by fluctuations in the currency exchange rate from that rate shall be calculated on an annual basis, commencing on the date of the Agreement. The Customer shall indemnify iplicit against any losses directly resulting from currency fluctuation where such losses exceed of more than 1% of the total contract price over each Subscription Term.
11.1 The Customer acknowledges and agrees that iplicit and/or its licensors own all intellectual property rights in the Software and Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation. Nothing in this agreement shall operate to prevent iplicit from making use of know-how acquired, principles learned or developed or experienced gained during the performance of this agreement in future contracts with third parties or the Customer.
11.2 iplicit confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.3 iplicit may modify the Services from time to time and at any time provided that if any modification materially adversely affects the functionality of the Services, iplicit will give notice to the Customer of the modification as soon as it becomes aware of the issue.
11.4 The Customer shall not without the prior consent of iplicit:
11.5 The intellectual property rights of iplicit held in any Software, Documentation, Services or any other software is and will remain at all times iplicit’s property or that of iplicit’s licensors.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
12.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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 this agreement.
12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute iplicit’s Confidential Information.
12.6 iplicit acknowledges that the Customer Data is the Confidential Information of the Customer.
12,7 This clause 12 shall survive termination of this agreement, however arising.
13.1 The Customer shall defend, indemnify and hold harmless iplicit against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
13.2 iplicit shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
13.3 In the defence or settlement of any claim, iplicit may procure the right for the 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 this agreement on 20 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4 In no event shall iplicit, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
13.5 The foregoing and clause 14.4(b) states the Customer’s sole and exclusive rights and remedies, and iplicit’s (including iplicit’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13.6 This clause 13 shall survive termination or expiry of this Agreement
14.1 This clause 14 sets out the entire financial liability of iplicit (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
14.2 Except as expressly and specifically provided in this agreement:
14.3 Nothing in this agreement excludes the liability of iplicit:
14.4 Subject to clause 14.2 and clause 14.3:
15.1 The right for the Customer’s Authorised Users to access the Software granted by this agreement shall, unless otherwise terminated as provided in this clause 15, commence on the creation of the first iplicit environment which is typically the Sandbox and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
15.3 Subject to clause 15.4, the Customer may at any time during the Implementation Period and prior to the Go Live Sign Off Date serve on iplicit a notice of not less than ten (10) Business Days to terminate all its rights pursuant this agreement.
15.4 Upon serving a notice to terminate this agreement pursuant to clause 15.3 the Customer shall be liable to pay to iplicit the Implementation Fees and shall pay the same within 10 days of iplicit’s invoice.
15.5 The Customer may terminate this agreement upon giving written notice to iplicit of not less than 3 months accompanied by payment of any outstanding Subscription Fees due for the remainder of the Subscription Term.
15.6 On termination of this agreement for any reason:
16.1 The Customer has the right to move Implementation Services or any additional training, or appointments as listed in this Clause 16.1 that have been booked (Booking) with iplicit, within a certain number of days from the Booking without incurring additional costs as per Clause 16.3, providing the following notice periods are followed:
16.2 To exercise the right to move a Booking, Customer must inform iplicit of the decision to move or cancel the Booking by sending to iplicit an email notification providing the original date of Booking to firstname.lastname@example.org. Customer acknowledges that any change to Booking may affect the Go Live Sign Off date and Customer agrees that iplicit is not responsible for this change.
16.3 If Customer moves the Booking in accordance with Clause 16 1, there will be no additional cost. Customer can still provide notice to move a Booking outside the notice period as per Clause 16.2, but the following additional fees will be invoiced for failing to keep to the original Booking or moving a Booking more than is permitted:
16.4 If Customer has a Booking and does not attend the Booking, the Customer will be charged the full costs of the Booking and will not be entitled to a reimbursement or any credit.
All disputes between the parties arising out of or relating to this agreement or the breach, termination or validity thereof shall be referred by either party in writing, first to each party’s managing director. The managing directors shall meet and attempt to resolve the dispute within a period of thirty (30) days from the date of referral of the dispute to them. This clause shall not restrict the ability of either party to apply for interim or injunctive relief.
iplicit shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, 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 iplicit 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 iplicit's or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
iplicit shall be permitted to publicise their involvement with the Customer by means of a written description and images on iplicit’s website and other communications channels, and the Customer hereby grants a non-exclusive perpetual licence to the iplicit to permit the use and reproduction of the of the Customer’s Trade Marks and any brand name used by the Customer on any website used by iplicit and any marketing materials created by or on behalf of iplicit to promote its services.
20.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
20.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
21.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.2 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.
22.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
22.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
22.3 In the event of any conflict in respect of the provisions of this agreement and/or the documents referred to in it, the following order of priority shall prevail (in descending order of priority):
23.1 The Customer shall not, without the prior written consent of iplicit, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23.2 Subject to clause 23.3, iplicit may, subject to giving 60 days’ notice to the Customer, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23.3 Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity or in an acquisition of all or substantially all its assets. No assignment becomes effective unless and until the assignee agrees in writing to be bound by all the assigning party’s obligations in this Agreement.
Nothing in this agreement 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).
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or may be sent to the other party by email, in the case of the Customer, to an email mailbox associated with the Customer’s account under this agreement and in the case of iplicit to the mail box address set out in the associated iplicit Software Proposal.
26.2 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 email shall be deemed to have been received at the time of transmission or, if the time of transmission is not in Normal Business Hours, then at 9am on the first business day following transmission.
27.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
27.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
28.1 Save as expressly provided in clause 28.2 this agreement, no amendment or variation of this agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.
28.2 iplicit may vary these terms from time to time to (i) reflect changes in our services or how we do business; (ii) to comply with changes in legislation or regulation; (iii) to reflect technical developments or because a feature or service is no longer viable; or (iv) for security reasons such as to prevent abuse or harm. If we materially change these terms, we will provide you with reasonable advance notice and where possible, no less than thirty (30 )days. If you continue to use the Services, you will be deemed to have accepted the change. If you do not agree to the new terms you must notify us within thirty (30) days of the change taking effect that you do not agree and you will remain on the current terms you have accepted until the end of the Initial Subscription Term or the current Renewal Period at which point our agreement will come to an end.