Quinjo Limited Terms and Conditions of Service
(A) Quinjo Limited (“Quinjo“) has developed and/or licence to use certain software applications and platforms which it makes available to subscribers on a pay-per-use basis.
(B) The Customer (as set out in the Order Summary) wishes to use Quinjo’s service in its business operations.
(C) Quinjo has agreed to provide and the Customer has agreed to take and pay for Quinjo’s service on the terms of the Order Summary and these conditions (together the “Agreement”).
1.1 In these conditions the following expressions shall have the following meanings unless inconsistent with the context:
1.1.1 “Account Activation Date” means the Account Activation Date set out in the Order Summary.
1.1.2 “Additional Services” those additional services provided by Quinjo from time to time in accordance with an Order Summary.
1.1.3 “Authorised Users” means the number of Fee Earners Subscribers and the Administrator Subscribers set out in the Order Summary.
1.1.4 “Authorised Users’ Representative” the representative nominated by the Customer and notified to Quinjo from time to time.
1.1.5 “Commencement Date” the date of signature of the Order Summary.
1.1.6 “Commercially Sensitive Data” the Documentation, Quinjo Product Source Configuration, Search Indexes, Search Logs and Audit Logs provided or generated by Quinjo or other any metadata generated by or on behalf of Customer under, or any other commercial data whatsoever or howsoever generated by Quinjo in providing the Services or otherwise in connection with the Agreement, including Quinjo’s pricing information, pricing structure and working practices and information pertaining thereto.
1.1.7 “Confidential Information” all information in respect of the business of Quinjo and Customer including, without prejudice to the generality of the foregoing, any ideas, business methods, finance, prices, business, financial, marketing, development or manpower plans, customer lists or details, the Commercially Sensitive Data or any other Intellectual Property Rights owned by Quinjo, computer systems and software including without limit the Software, the Documentation, products or services, including but not limited to know-how or other matters connected with the products or services marketed, provided or obtained by Quinjo, and information concerning Quinjo’s relationships with actual or potential Customers, customers or suppliers and any other information which, if disclosed, shall be liable to cause harm to the party whose confidential information would be disclosed.
1.1.8 “Customer Data” the data inputted into the Software by the Customer or the Authorised Users, or by Quinjo on the Customer’s behalf.
1.1.9 “Customer Operating Environment” the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Services and which is a system which is an Interoperable Legal System.
1.1.10 “Data Protection Legislation” all laws, regulations, legislative and regulatory requirements, and codes of practice applicable to the processing of personal data, including without limitation all the provisions of the General Data Protection Regulation 2016 (GDPR) and any regulations or instruments thereunder, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
1.1.11 “Documentation” documentation provided by Quinjo to the Customer or the Authorised Users from time to time.
1.1.12 “Fees” fees for the Services (and/or Additional Services as set out on the Order Summary) and other fees agreed between the parties from time to time.
1.1.13 “Force Majeure Event” any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of the party so prevented including, without limitation, strikes, lockouts or other industrial disputes (in each case whether involving the workforce of the party so prevented or any other party), protests, act of God, war or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery or telecommunications, fire, explosion, flood, storm, epidemic, pandemic or default or delays of suppliers or sub-contractors.
1.1.14 “Initial Term” the initial term for the provision of the Services as set out in the Order Summary.
1.1.15 “Intellectual Property Rights” all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights, domain names and any other rights in any invention, discovery or process, in each case in the United Kingdom and together with all renewals and extensions
1.1.16 “Interoperable Legal System(s)” a system which is interoperable with the Software and is defined as including 3rd party connectivity to any Quinjo system.
1.1.17 “Normal Business Hours” 9.00 am to 5.00 pm local UK time, each Business Day.
1.1.18 “Order Summary” the Order Summary detailing the Services which is signed by both parties.
1.1.19 “Party(ies)” the Customer and Quinjo.
1.1.20 “Personal Data” has the same meaning as in General Data Protection Regulation 2016
1.1.21 “Product Description” the description of the Software.
1.1.22 “Renewal Term” as described in Clause 2.2.
1.1.23 “Sensitive Personal Data” has the same meaning as in General Data Protection Regulation 2016
1.1.24 “Services” any services provided by Quinjo under the Agreement including without limit the Software, the subscription services provided by Quinjo to the Customer, the Support Services and any Additional Services.
1.1.25 “Software” the software tool, whether running on the Customer’s computer equipment or on computer equipment owned and/or operated by Quinjo which provides access to Customer Data including without limit all releases and versions of those programs issued by Quinjo to the Customer.
1.1.26 “Support Services” support and Support Services in relation to the Software and the Services to be provided to the Customer as detailed in clause 9 as amended from time to time.
1.1.27 “Term” shall mean the Initial Term and any Renewal Term.
1.1.28 “User Subscriptions” the user subscriptions purchased by the Customer pursuant to the Order Summary which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Agreement.
1.1.29 “Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices
1.2 In the event of a conflict between these terms and conditions or the Order Summary, the Order Summary shall take precedence over these terms and conditions.
2 COMMENCEMENT AND DURATION
2.1 The Agreement will operate as a framework agreement which defines the contractual terms and conditions under which Quinjo will supply the Services to the Customer.
2.2 The Agreement shall commence on the Commencement Date and shall continue throughout the Initial Term specified. The Initial Term will be extended in line with the provisions set out in Section 6 of these Terms and Conditions.
2.3 Subject to the payment of the appropriate Fees, Quinjo shall provide any Additional Services (as agreed between the parties from time to time in a separate Order Summary) and under the terms of the Agreement.
3.1 Quinjo shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
3.2 Quinjo shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance works, which shall be carried out wherever possible outside of Normal Business Hours.
3.3 Whilst Quinjo will use all reasonable endeavours to meet any delivery dates, any dates quoted for delivery of Services are approximate only and time is not of the essence in relation to Quinjo’s performance of its obligations under the Agreement.
3.4 Quinjo will, as part of the Services and at no additional cost to the Customer, provide the Customer with its standard customer support services during Normal Business Hours in accordance with clause 9 (which Quinjo may amend in its sole and absolute discretion from time to time). The Customer may purchase enhanced support services separately at Quinjo’s then current rates.
4 SUPPORT SERVICES
4.1 Quinjo shall provide the Support Services in accordance with this clause and/or as further detailed in any Order Summary.
4.2 Quinjo shall use its reasonable endeavours to:
4.2.1 provide provide first-line support personnel to take calls during the service hours who shall verify the initial priority set at the support desk via discussion between service delivery personnel and the Customer, allocate calls with an initial priority via discussion between the support desk and the Customer and offer an initial assessment of the time it shall take to resolve;
4.2.2 provide an answer-phone service to record calls outside Normal Business Hours, which shall be actioned during Normal Business Hours;
4.2.3 ensure that a call remains open until a satisfactory resolution has been reached in agreement with the Customer. In the event that the Customer is unavailable and two attempts have been made to contact the caller, service delivery staff shall close the call. If this is the case a message shall be left with someone at the Customer’s office and an e-mail sent. Should the resolution prove unsatisfactory the original call can be re-opened without the need to raise a new call with the support desk;
4.2.4 notify all Customers of any problem or issue that may significantly impact their business and, where applicable, update the Software as soon as practicable;
4.2.5 provide follow-up communication providing detail of resolution to the problem/issue identified above; and
4.2.6 provide second-line staff for the resolution and fixing of software problems.
4.3 The Customer acknowledges that:
4.3.1 it shall be responsible for any loss or corruption of data or malfunction of the live system, caused by any of Customer’s own staff or other contract third parties. The rectification of such loss or corruption falls outside all normal support agreements with Quinjo;
4.3.2 it shall ensure that new members of staff receive appropriate and relevant Software, application or systems administration training prior to using the Software and are made aware of any available electronic and hard copy documentation and help files;
4.3.3 fees for Support Services are for a reasonable level of support assistance. If Quinjo believes, in its sole opinion, that Support Services are being used excessively and/or unreasonably, for example but not limited to as a replacement for training, Quinjo reserves the right to charge for such Support Services on an hourly basis at its then current rates in force.
4.4 The following are excluded from the scope of the Support Services:
4.4.1 meetings requested by Customers relating to projects work may be chargeable in addition to Support Services (e.g. where general technical advice or consultancy is required but it is unrelated to core Software functionality or any links with it);
4.4.2 out of hours and weekend working;
4.4.3 where a problem or fault is caused directly or indirectly by a fault or malfunction (in the reasonable opinion of Quinjo) in the Customer Operating Environment; and
4.4.4 support which is required where the Customer or the Authorised User has not implemented Quinjo’s recommendations in respect of solutions to faults previously notified to Customer.
5 USER SUBSCRIPTIONS
5.1 Subject to the Customer purchasing the User Subscriptions in accordance with the Order Summary and the restrictions set out in these conditions, Quinjo hereby grants to the Customer a non-exclusive, non-transferable licence (without the right to sublicence) to permit the Authorised Users to install any Software provided and to use the Services and the Documentation during the Term solely for the Customer’s internal business operations within the United Kingdom.
5.2 In relation to the Authorised Users, the Customer undertakes that:
5.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
5.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
5.2.3 it shall not allow Administrator Subscribers to perform fee earning tasks using the Services;
5.2.4 each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential;
5.2.5 it shall maintain a written, up to date list of current Authorised Users and provide such list to Quinjo within 5 Business Days of Quinjo’s written request at any time or times;
5.2.6 it shall permit Quinjo to audit the Services (either remotely or on-site at the Customer’s premises), including, but not limited to, in order to establish the name, password or status of each Authorised User and to establish whether Administrator Subscribers are using the Services for fee earning purposes;
5.2.7 if any of the audits referred to in clause 5.2.6 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Quinjo’s other rights, the Customer shall promptly disable such passwords and Quinjo shall not issue any new passwords to any such individual; and
5.2.8 if any of the audits referred to in clause 5.2.6 reveal that the Customer has underpaid Subscription Fees to Quinjo, then without prejudice to Quinjo’s other rights, the Customer shall pay to Quinjo an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Summary within 10 Business Days of the date of the relevant audit.
5.3 The Customer shall not, and shall procure that the Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
5.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
5.3.2 facilitates illegal activity;
5.3.3 depicts sexually explicit images;
5.3.4 promotes unlawful violence;
5.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
5.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
5.4 Clause 5.3 does not apply where it is necessary to access or distribute such material for the purposes of legal services being supplied by the Customer.
5.5 The Customer shall not, and shall procure that the Authorised Users shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement or as is necessary for the purposes of legal services being supplied by the Customer between the parties, copy or 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 mean and shall notify Quinjo immediately on becoming aware of any unauthorised use of the Software or Services or Documentation by any person; or
5.5.1 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
5.5.2 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
5.5.3 use the Services and/or Documentation to provide services to third parties; or
5.5.4 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 the Authorised Users, or
5.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
5.6 Quinjo reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
5.7 The 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 Quinjo.
5.8 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
6.1 The Customer shall pay the Fees as detailed in the Order Summary in accordance with this clause, subject to any other payment terms detailed in the Order Summary.
6.2 For Prepaid Annual Subscriptions, Fees are payable in advance of activation.
6.3 For Pay Monthly Annual Subscriptions, fees will be collected via Direct Debit on the allocated date for each calendar month and will reoccur for a minimum of 12 monthly instalments (as set of in the Order Summary).
6.4 Auto Renewal. Upon expiry of the Initial Term or any subsequent renewal thereof, the Subscription shall renew automatically unless otherwise terminated in accordance with the provisions of these Terms and Conditions. Unless otherwise agreed by the parties in writing prior to any Renewal Term, each renewal shall be on the same terms and conditions provided herein save as provided for in clause 6.14.
6.5 The Customer shall pay supplementary charges:
6.5.1 when Quinjo responds to a fault report or request for assistance and no problem is found to exist (after proper investigation) or the problem reported is one not covered by the Support Services; or
6.5.2 when performance of Quinjo’s obligations is made significantly more difficult or made more costly by failure of Customer or any Authorised User to comply with its obligations.
6.6 Fees in respect of any Additional Services or other works performed by Quinjo (which are not performed under an agreed fee in the Order Summary) shall be agreed in advance and chargeable by Quinjo at its time (on a pro-rata basis for each part day) and material rates in force from time to time.
6.7 All sums due under the Agreement shall be paid in pounds sterling, and are exclusive of any VAT which shall be paid at the rate for the time being prescribed by law.
6.8 All amounts due under the Agreement from Quinjo to the Customer shall be due and payable as set out in the Order Summary, or if not specified, within 30 days of the date of the relevant invoice.
6.9 If Quinjo has not received payment of sums due to it by the Customer within 5 Business Days of the due date, and without prejudice to any other rights and remedies Quinjo may have, and without liability to the Customer, at its sole option, terminate the Agreement with immediate effect or disable the Customer’s access to all or part of the Services. Quinjo shall be under no obligation to provide any or all of the Services while such payment, interest, and any administrative and/or legal costs of collecting the payment, remain unpaid.
6.10 If 5 Business Days before the contracted Renewal Term Quinjo have not received payment for the renewal subscription, then it shall be deemed that the subscription will not be renewed. Under such circumstances the customer will have up to and including the current Renewal Term to extract and/or repatriate all their data and working documents to another system, an external device or an external repository. This will be the sole responsibility of the customer. There will be no further prompting by Quinjo.
6.11 If beyond the Renewal Term the customer has failed to pay the renewal subscription, then Quinjo will be under no obligation to continue to store and manage such data without appropriate fees being paid by the customer. Such fees will be known as a termination payment.
6.12 Quinjo will be entitled to charge the customer £2000 per subscription for the management and extraction of such data together with the direct costs of any media used to repatriate the said data back to the customer. No data will be repatriated without cleared receipt of the termination payment first.
6.13 If the Customer Operating Environment is compromised, Quinjo may suspend the Customer’s access to the Services. The Customer must address the vulnerability and demonstrate to Quinjo’s satisfaction that such vulnerability has appropriately addressed and/or fixed prior to Quinjo resuming the Customer’s access to the Services. A reconnection fee may be payable at Quinjo’s sole discretion.
6.14 Quinjo reserves the right to vary the User Subscription price annually at the point of the Renewal Term. Any such price increase will be notified at least 30 days in advance of the Renewal by Quinjo to the customer. In the event that no variation is agreed the User the base price will increase in line with the percentage increase in the UK Retail Price Index (RPI), as published by the Office for National Statistics (ONS). This base price change will take effect from the first day of the renewal and the RPI percentage will be set as at that calendar point in time and based on the RPI % rate given on the ONS website.
6.15 Should Quinjo be subject to any unforeseen third-party price increases which are beyond their reasonable control, then Quinjo reserve the right to pass on these increases and vary the Subscription price accordingly. Any such increase will only be applied to any renewal period beyond the Initial Term and will be advised in writing.
6.16 If any sum payable under the Agreement is not paid when due then, without prejudice to Quinjo’s other rights under the Agreement, that sum shall bear interest from the due date until payment is made in full both before and after any judgment, at 5 per cent per annum over Barclay’s Bank plc base rate from time to time. Nothing in the Agreement shall prevent Quinjo from claiming interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
7 CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
7.1.1 provide all such assistance and access to its sites and the Customer Operating Environment as is reasonably necessary to allow Quinjo to perform its obligations under the Agreement;
7.1.2 ensure that Quinjo is able to liaise directly with the Authorised Users, as is reasonably necessary, in order to perform its obligations under the Agreement;
7.1.3 make available a nominated member of staff to attend training sessions in relation to the Services and feed the output of such training sessions through to the Authorised Users or otherwise arrange for the Authorised Users to attend such training sessions;
7.1.4 provide Quinjo with a list of Customer sites where the Services will be used and facilitate access to those sites.
7.1.5 obtain and maintain all necessary license, consents and permissions necessary for Quinjo, its contractors and agents to perform their obligations under the Agreement;
7.1.6 ensure that its network and systems comply with any relevant specifications provided by Quinjo from time to time including but not limited to any hardware specification provided by Quinjo from time to time;
7.1.7 be solely responsible for procuring and maintaining its network connections and the Customer Operating Environment and telecommunications links from its systems to the Quinjo systems, Software or Services and all problems conditions, delays, delivery failures and all other loss or damage resulting from or relating to the Customer’s (or any Authorised User’s) network connections or telecommunication links or caused by the internet.
8 CUSTOMER’S ACKNOWLEDGEMENTS
8.1 The Customer acknowledges that:
8.1.1 the Software has not been written to satisfy the Customer’s individual requirements. It is Customer’s responsibility to ensure that the Services and Documentation meet its requirements. Quinjo does not warrant that it shall be suitable for such requirements;
8.1.2 software in general is not error free and that the existence of minor errors shall not by themselves constitute a breach of the Agreement and that Quinjo shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
8.1.3 they shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and the search criteria used by the Authorised Users in their use of the Services;
8.1.4 Quinjo shall not be responsible for outputs or the quality of data provided from 3rd party systems that present within the solution’s search results and for conclusions drawn, and actions taken, from such use by the Customer; and
8.1.5 Quinjo may provide fixes for Software from time to time via new versions of a Software release.
8.2 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. Quinjo shall use reasonable efforts to ensure the accurate migration of any Customer Data, but gives no warranties as to the completeness or accuracy of the same. The Customer shall be responsible for checking the accuracy and completeness of any Customer Data or other migrated data, and shall promptly give details to Quinjo of any inaccuracies or omissions;
8.3 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Quinjo to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Quinjo in accordance with its archiving procedures. Quinjo 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 Quinjo to perform services related to Customer Data maintenance and back-up).
8.4 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. The Agreement does not grant the Customer any rights to, or in, 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.
8.5 Quinjo shall not access Customer Data save as reasonably necessary to ensure provision of the Services or to ensure continuity of like services to othe .
9 RESTRICTIONS ON USE
9.1 The Customer shall, and ensure that the Authorised Users shall:
9.1.1 effect and maintain adequate security measures to safeguard the Software or Services against access to or use by unauthorised persons and ensure that the Software or Services and the Documentation and all copies are kept under its control. To the extent permissible by law Quinjo shall not be liable for any loss or damage that may occur or the Customer or any Authorised User may incur as a result of any misuse of the Software or Services;
9.1.2 indemnify Quinjo from and against all claims, liabilities, proceedings, costs, damages, losses, or expenses incurred by Quinjo caused by, or in any way connected with, Customer’s and Authorised User’s use of the Services, or the unauthorised use of the Services by any third party, whether through breach of the Agreement or any other negligent or wrongful act of Customer, Authorised User or third party (as appropriate).
9.2 The Customer must not attempt to circumvent any technological measure implemented by Quinjo.
10 INTELLECTUAL PROPERTY
10.1 All patents in (whether actual or pending and whether in the United Kingdom or anywhere in the world) and all other Intellectual Property Rights in the Software, Services, Commercially Sensitive Data, Quinjo’s Confidential Information and the Documentation are and shall remain the property of Quinjo (or its licensors).
10.2 Quinjo shall defend or, at its option, settle any claim or proceeding brought against a Customer, that the normal use of the Services by Customer in accordance with the Agreement infringes any Intellectual Property Rights of any third party, and shall pay any damages finally awarded against the Customer in respect of such claim together with any reasonable costs and expenses incurred by Customer provided that Quinjo is given immediate and complete control of such claim and all information and assistance, at Quinjo’s cost, as Quinjo reasonably requires, and that Customer does not do, or omit to do anything which may prejudice the defence of such claim.
10.3 In the event that a claim as contemplated by Clause 10.2 is made or in Quinjo’s opinion is likely to be made, Quinjo may at its option:
10.3.1 procure the right for Customer to continue to use the Services affected without materially affecting the functionality;
10.3.2 change or replace all or any part of the Services without materially affecting the functionality; or
10.3.3 if the options under Clause 10.3.1 or 10.3.2 are not reasonably commercially available to Quinjo, terminate the Agreement immediately upon written notice to the Customer, in which case Quinjo shall refund the Fees in respect of the affected Services less a reasonable charge for their use prior to such termination.
10.4 The indemnity set out above shall not apply to any claim arising directly or, to the extent applicable, indirectly out of any of the following:
10.4.1 Quinjo’s compliance with Customer’s design or design instructions or requirements;
10.4.2 any use of the Services in a manner, or for a purpose, which was not foreseeable by Quinjo;
10.4.3 the infringement results from the assembly, function or use of the Services in combination with any products or software or services not supplied by Quinjo;
10.4.4 the infringement results from the acts or omissions of Customer or the Authorised Users; or
10.4.5 the modification of the Services by Customer or the Authorised Users or by any third party.
10.5 Clauses 11.2 and 11.3 state the entire liability of Quinjo to the Customer in respect of any claim contemplated by Clause 11.2.
10.6 The Customer grants to Quinjo an irrevocable, perpetual, royalty-free licence in any and all Intellectual Property Rights in data outcomes and reporting arising from the Customer’s use of the Services, including, but not limited to, enriched data reporting and history at the date of their creation, and shall do all acts and execute all such deeds and documents as may be necessary to give effect to such licence.
10.7 The Customer may not:
10.7.1 modify or create and derivative works of the Services or Software
10.7.2 copy all or any portion of the Services or Software
10.7.3 sublicence the Services or Software
10.7.4 permit use of the Services or Software by other than an Authorised User.
10.7.5 use the Service or Software in a timesharing, hosting or service bureau arrangement, or otherwise transfer rights to the Service or Software
10.7.6 violate, infringe, or misappropriate other people’s intellectual property, privacy or other legal rights;
11.1 Quinjo may have access to Confidential Information of the Customer under the Agreement and vice versa. A party’s Confidential Information shall not include information that:
11.1.1 is or becomes publicly known through no act or omission of the receiving party; or
11.1.2 was in the other party’s lawful possession prior to the disclosure; or
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 The Customer acknowledges that all or part of the Commercially Sensitive Information shall constitute Confidential Information and that the disclosure of the same without the permission of Quinjo would or is likely to prejudice Quinjo’s commercial interests. The Customer shall, and shall procure that the Authorised Users shall, use the same standard of care to protect the Commercially Sensitive Information as it uses to protect its own similar sensitive and confidential information, but in no event shall it use less than reasonable and prudent care.
11.3 The Customer agrees with Quinjo to keep confidential and in strict confidence the terms of the Agreement.
11.4 The Customer and Quinjo agree to keep confidential and in strict confidence any and all Confidential Information that it may acquire in relation to the other party, not to use such Confidential Information (save in the provision of the Services or to comply with its obligations under the Agreement and not to disclose the same to a third party (other than it’s professional advisers or sub-contractors who are under a similar duty to protect Confidential Information) unless required by law.
11.5 The Customer and Quinjo shall ensure that its officers and employees comply with the provisions of this Clause 13, and 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 clause 11. In particular, the Customer shall ensure that the Authorised Users are aware of and comply with the confidentiality obligations set out in this clause 11 as if they were a party to the Agreement.
11.6 Quinjo may disclose the Customer’s Confidential Information to those of its representatives or sub-contractors who need to know this Confidential Information in order that Quinjo may provide the Services under the Agreement, provided that:
11.6.1 it informs its representatives or sub-contractors of the confidential nature of the Confidential Information before disclosure; and
11.6.2 it procures that its representatives or sub-contractors shall, in relation to any Confidential Information disclosed to them, comply with the Agreement and, in particular this Clause 13, as if they were named herein.
11.7 The provisions of this Clause 11 shall survive any termination of the Agreement for a period of 5 years from termination.
12 TERMINATION AND CONSEQUENCES OF TERMINATION
12.1 Without affecting any other rights that it may be entitled to, either Quinjo or the Customer may, by written notice served on the other, terminate the Agreement immediately if the other:
12.1.1 is in material breach of any of the terms of the Agreement and, where the breach is capable of remedy, and the other party fails to remedy such breach within 30 days after service of the notice (which notice shall specify the breach and require it to be remedied), provided that any such notice is served within three months of the breach occurring or becoming known to the party serving the notice; or
12.1.2 summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertakings or income, has passed a resolution for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any Court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person or is the subject of a notice to strike off the register at Companies House.
12.2 Upon termination of the Agreement howsoever arising:
12.2.1 for Pay Monthly Subscribers, if you cancel your Direct Debit prior to your last contracted monthly payment as per your Order Summary, you will receive an invoice for the outstanding balance equating to the full 12 months subscription price less any monthly payments made up to the date of termination.
12.2.2 all sums payable to Quinjo by Customer shall become immediately due and payable;
12.2.3 the right to use the Services shall terminate (and Customer shall immediately inform the Authorised Users of such termination); and
12.2.4 the Customer shall promptly return to Quinjo or destroy (at Quinjo’s option) all copies of the Documentation in its possession or control and shall procure that the Authorised Users do the same and shall confirm the same in writing to the Customer within 7 days of termination.
12.3 The termination of the Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
12.4 The clauses in the Agreement which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
12.5 If the Agreement is terminated prior to the end of the Term, other than by reason of a material breach by Quinjo under Clause 12.1.1, all Fees payable up to the end of the Term shall be immediately due and payable by the Customer.
12.6 Notwithstanding the foregoing, Quinjo may suspend the Services without liability if:
12.6.1 Quinjo reasonably believe that the Services are being used in breach of the Agreement and the Customer does not remedy the failure within fourteen (14) days of Quinjo’s written notice to the Customer describing the breach;
12.6.2 the Customer does not co-operate with Quinjo’s reasonable investigation of any suspected violation of the Agreement;
12.6.3 there is an attack on the Services or the Services are accessed by or manipulated by a third party without Quinjo’s consent;
12.6.4 Quinjo is required by law to suspend the Services or the Customer’s access to the Services; or
12.6.5 there is another event for which Quinjo reasonably believes that a suspension of the Services is necessary to protect its network, system, the Services or its other Customers.
12.7 Quinjo will use reasonable endeavours to give the Customer advance notice of a suspension under Clauses 12.6.3 to 12.6.5 (inclusive), unless Quinjo determines in its reasonable commercial judgement that an immediate suspension is necessary to protect Quinjo or its Customers from an imminent and significant operational or security risk.
12.8 If the Customer wishes to terminate the Agreement at the end of the Initial Term or any subsequent Renewal Term then notice must be given between 90 and 30 days before the last day of the relevant term.
13.1 Quinjo warrants that the Services (including without limit the Support Services) shall be provided with reasonable skill and care.
13.2 Quinjo does not warrant that the Software shall be free from all known viruses but shall use commercially reasonable efforts to check for the most commonly known viruses prior to delivery.
14 LIMITATION AND EXCLUSION OF LIABILITY
14.1 Quinjo does not exclude its liability (if any) to Customer:
14.1.1 for personal injury or death resulting from Quinjo’s negligence;
14.1.2 for any matter to the extent for which it would be illegal for Quinjo to exclude or to attempt to exclude its liability; or
14.1.3 for fraud or fraudulent misrepresentation.
14.2 Except as set out in Clause 13, Quinjo makes no express warranties with respect to the Software, Services and Documentation and Quinjo hereby excludes to the fullest extent permissible in law, all conditions, warranties (including without limitation any warranty that the Software or Services shall meet Customer’s requirements or that its operation shall be uninterrupted or error free) and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of Customer.
14.3 Quinjo shall have no liability for any damage caused by errors or omissions in any information, Customer Data, instructions or materials provided to Quinjo by the Customer or used in relation to the Services, or from any conclusions drawn by the Customer as a result of its use of the Services, or for any action taken by Quinjo at the Customer’s direction.
14.4 Quinjo accepts no liability in respect to the functionality or interoperability of any third party software or interoperable systems with the Software.
14.5 Subject to Clause 14.1, Quinjo’s entire liability under or in connection with the Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors) whether in contract, tort (including without limit negligence), breach of statutory duty, restitution or otherwise in any event, in respect of all losses in any contractual year, shall be limited to 100% of the Fees paid or payable under the Agreement in the preceding 12 month period.
14.6 Except as provided in Clause 14.1, Quinjo shall be under no liability to Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of data, loss of savings, depletion of goodwill and like loss) howsoever caused.
14.7 Quinjo shall not be in breach of the Agreement to the extent its failure to perform an obligation under the Agreement is as a result of Customer’s failure, or any failure of the Authorised Users, to perform their obligations under or in connection with the Agreement.
15 FREEDOM OF INFORMATION
15.1 Subject always to Clause 11, should the Customer receive a request to disclose the Commercially Sensitive Information (or part thereof) or details pertaining thereto from another party or person (whether under an application under the Freedom of Information Act 2000 or otherwise), or should the Information Commissioner serve a notice on the Customer requiring the disclosure of the Commercially Sensitive Information, then the Customer shall:
15.1.1 promptly notify and consult with Quinjo when considering a request for access to such Commercially Sensitive Information (including without limit advising Quinjo if the Customer is considering disclosing such Commercially Sensitive Information) and if required by Quinjo appeal against the notice to the Information Tribunal and/or apply redactions to such Commercially Sensitive Information;
15.1.2 use all its reasonable endeavours to withhold Commercially Sensitive Information (or details pertaining thereto), under an absolute or qualified exemption of the Freedom of Information Act, or otherwise where such disclosure would be disproportionate, unnecessary or unwarranted.
15.1.3 immediately provide Quinjo with written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order.
16 DATA PROTECTION
16.1 Quinjo and the Customer shall comply with their respective obligations under the General Data Protection Regulation 2016 and any other applicable data protection legislation (the “Act”) and the Customer shall ensure it has all relevant consents required for Quinjo to process Personal Data and Sensitive Personal Data in order for Quinjo to comply with its obligations under the Agreement. For the avoidance of doubt, Quinjo shall not be liable for any breach of the Act by the Customer or as a result of any disclosure of data to a third party by the Customer.
16.2 Where Quinjo or any of its sub-contractors, as part of the fulfilment of their obligations under the Agreement, processes personal data on the Customer’s behalf, the parties record their intention that the Customer shall be the data controller and Quinjo shall be a data processor and in any such case:
16.2.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the UK, EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Quinjo’s other obligations under this Agreement;
16.2.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Quinjo so that Quinjo may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
16.2.3 the 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; and
16.2.4 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.
17.1 The Customer shall not during the Term, nor for a period of twelve months after termination of the Term (howsoever caused), solicit or employ Quinjo’s employees or contractors who have been employed or engaged in the performance of the Services.
17.2 For the purposes of this Clause 17, ‘solicit’ means the soliciting of any person with a view to engaging such person as an employee, director, sub-contractor or independent contractor. In the event that Customer is in breach of Clause 18.1 above, the Customer shall pay to Quinjo by way of liquidated damages an amount equal to 100 (one hundred) per cent of the gross annual salary (as at the time of the breach) of the person so employed or engaged.
18.1 All notices made or that are required under the Agreement shall be in writing or by email and shall be sent to the addresses set out on the Order Summary (or such other address as may be notified in writing or by email from time to time) by first class pre-paid letter, email transmission, fax transmission, or delivered by hand.
18.2 All notices shall be deemed to have been received:
18.2.1 by first class post, 48 hours after the date of mailing;
18.2.2 by hand, immediately upon delivery;
18.2.3 by email, immediately upon transmission; or
18.2.4 by fax, immediately upon transmission.
19 FORCE MAJEURE
19.1 Neither the Customer nor Quinjo shall be liable to the other for any failure or delay or for the consequences of any failure or delay in performance of the Agreement if it is due to a Force Majeure Event, and the party so delayed shall be entitled to a reasonable extension of time for performing such obligations.
20 DISPUTE RESOLUTION
20.1 If any dispute arises out of the Agreement (“a Dispute”) the parties shall attempt to resolve it by negotiating in good faith. Subject to Clause 20.2, the procedures set out in the rest of this Clause 20 shall be followed prior to the issue of any proceedings or in relation to any Dispute concerning matters of procedure and management.
20.2 Any Dispute which the parties fail to resolve within 2 Business Days of its first notification by one party to the other shall be referred to Quinjo’s Account Manager (or delegated representative) for Quinjo and Customer’s representative for resolution (unless the parties agree otherwise in writing).
20.3 If the relevant Dispute remains unresolved within 2 Business Days of its referral to the parties’ respective individuals as set out in Clause 20.2, then the Dispute shall be referred to Quinjo’s CEO (or delegated representative) and the Customer’s CEO (unless the parties agree otherwise in writing).
20.4 If the relevant Dispute remains unresolved following its referral to the parties’ respective individuals as set out in Clause 20.3, then the parties shall be at liberty to commence proceedings. However, they shall consider on an ongoing basis whether or not it would be suitable to enter into mediation.
20.5 This Clause shall not prevent either party from:
20.5.1 seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of Intellectual Property Rights; or
20.5.2 commencing any proceedings where reasonably necessary to avoid any inability to claim due to the rules on limitation of actions; or
20.5.3 commencing proceedings in the case of non-payment of an invoice.
21.1 This Agreement and other documents referred to in it (each of which are incorporated into and form part of the Agreement), constitute the entire agreement between the Customer and Quinjo, and supersedes any previous agreements, between the parties relating to the subject matter of the Agreement.
21.2 The parties acknowledge that the Agreement has not been entered into wholly or partly in reliance on, nor has either party been given any warranty, statement, promise or representation made by or on behalf of the other which is not specifically set out in the Agreement. To the extent that any such warranties, statements, promises or representations have been given each party unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation to them, provided that nothing in this Clause 21.2 shall exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
21.3 There shall be no variation of these Terms and Conditions unless expressly agreed in writing between both parties.
21.4 No failure or delay by any party to exercise any right, power or remedy shall operate as a waiver of it nor shall any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
21.5 The Customer shall not assign, delegate or otherwise transfer any of its rights and obligations under the Agreement without the prior written consent of Quinjo. Quinjo shall be entitled to assign the benefit and delegate the burden of the Agreement, and/or otherwise novate, sub-contract or dispose of any or all of its rights and/or its obligations under the Agreement or any part thereof to any entity.
21.6 Quinjo shall have the right to subcontract its obligations under the Agreement.
21.7 If any clause or part of the Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed from the Agreement and shall be ineffective without, as far as is possible, modifying any other clause or part of the Agreement and this shall not affect any other provisions of the Agreement which shall remain in full force and effect.
21.8 All payments to be made by Customer to Quinjo under the Agreement shall be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature unless the Customer is required by law to make any such deduction or withholding.
21.9 The parties do not intend that any of its terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
21.10 The formation, existence, construction, performance, and validity of the Agreement shall be construed in accordance with the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement. The parties irrevocably agree to submit to that jurisdiction except that each party may seek injunctive relief in any court of competent jurisdiction.
Cambridge, CB4 0WS