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This document outlines the Service Credit arrangement between THRIVE Learning and the Customer.
This agreement is dated 2021
Thrive has developed a learning and development software platform which it makes available to subscribers via the internet and an application.
The Customer wishes to use Thrive's service in its business operations.
Thrive has agreed to provide and the Customer has agreed to take and pay for Thrive 's service subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
1. Affiliates: means any person which is, in relation to a company, its parent undertaking or its subsidiary undertaking, or a subsidiary undertaking of its parent undertaking or any other person controlled by or under the same control either directly or indirectly. “Parent undertaking” and “subsidiary undertaking” will have the meanings attributed to them in section 1162 of the Companies Act 2006
2. Authorised Users/ Enabled Users: those employees, agents and independent contractors of the Customer (and where the context permits those employees, agents and independent contractor of an Affiliate ) who are authorised by the Customer to use the Services and the Documentation, as further described in 2.7(d).
3. Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
4. Change Control Procedure: the change control procedure set out at clause 4.
5. Charges: the charges payable in accordance with Schedule 1 of the agreement and clause 11.
6. Cloud Platform: the AWS platform which hosts the Services for and on behalf of Thrive.
7. Commencement Date: the date of this agreement.
8. Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.5 or 13.6.
9. Configuration: a configuration of the Software for the business scope specified in Schedule 1, using the Configurator Tool and Configure shall be construed accordingly.
10. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
11. Customer Data: the data inputted by the Customer, Authorised Users, or Thrive on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
12. Customer Infrastructure: the hardware, software and I.T infrastructure owned or used by the Customer.
13. Customer IPR: all IPR owned by or licensed to the Customers now or in the future including but not limited to all IPR in and to:
14. (a) the Customer’s own website;
15. (b) any trademarks, logos or branding owned by the Customer;
16. (c) Customer Data; and
17. (d) Report Data.
18. Customisation: any customisation of the Services, whether made through development, configuration (other than Configuration), modification or integration of the Software or otherwise.
19. Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
20. Data Migration: the transfer and import of any pre-existing customer data (if any) into the Software.
21. Deliverables: all deliverables to be provided as per the Statement of Work.
22. DPA: a data processing agreement in the form agreed at Schedule 3.
23. Documentation: the document made available to the Customer by Thrive online via thrivetribe.learn.link or such other web address notified by Thrive to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
24. Expenses: travel, accommodation and subsistence expenses that are necessary and reasonably incurred by Thrive exclusively in connection with the performance of Thrive’s obligations under this agreement.
25. Force Majeure Event: those events listed in clause 20.
26. Implementation: the implementation of the Software in accordance with Schedule 4.
27. IPR: : means intellectual property rights, including but not limited to: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights to get-up, rights and good will or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, rights in databases, moral rights, rights in confidential information (including without limitation know–how and trade secrets) and any other intellectual property right in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions as such rights, and/or similar or equivalent rights or forms of protection in any part of the world. Maintenance and Support: any error corrections, updates and upgrades that Thrive may provide or perform with respect of the Software as well as any other support or training services provided to the Customer under the agreement as described in Schedule 4. Maintenance Release: a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software but which does not constitute a New Version.
28. New Version: any new version of the Software which is from time to time publicly marketed and offered for purchase by Thrive in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
29. Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
30. Report Data: data in any media generated or produced by virtue of the use of the Services.
31. Services: the subscription services provided by Thrive to the Customer under this agreement via customer.learn.link or any other website notified to the Customer by Thrive from time to time, as more particularly described in the Documentation and including the provision of the Cloud Platform and the Software.
32. Software: the online software applications provided by Thrive as part of the Services.
33. Specification: the technical specification for the Services to be provided as set out at Schedule 2.
34. Statement of Work: the statement of work detailing Implementation and other services (if any) as set at Schedule 4.
35. Term: a period of 3 years, commencing on the Commencement Date.
36. Thrive IPR: all IPR created, owned by or licensed to Thrive now or in the future including but not limited to all IPR in and to:
37. (a) the Services;
38. (b) the Software (including but not limited to its entire code base and graphical assets) including any Updates, Maintenance Releases and New Versions;
39. (c ) the Documentation;
40. (d) any report templates;
41. (e) any database or database architecture used in connection with the Software, proprietary to Thrive;
42. (f) Thrive’s configurator tool (Configurator Tool); and
43. (g) all trademarks, logos and branding used by Thrive (save for the Customer’s trademarks, logos and branding).
44. UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
45. Update: a minor update, patch or hotfix to the Software.
46. User Subscriptions: the user subscriptions purchased by the Customer in accordance with the provisions of this agreement which entitle the Customer and its Authorised Users to access the Services.
47. 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 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. The Schedules form part 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 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, 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 as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes and e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2.1 Subject to the Customer paying the Charges, and otherwise complying with the terms of this agreement, Thrive hereby grants to the Customer during the Term (subject to early termination in accordance with clause 19.2) a non-exclusive, non-transferable right, without the right to grant sublicences (unless otherwise specified in the Statement of Work or save to the extent expressly provided by this agreement), to permit the Authorised Users to use the Services and the Documentation for the Customer’s own internal business operations.
2.2 Subject to compliance with the terms of this agreement, the Customer and its Affiliates shall have the right during the Term to configure the Services using Thrive’s Configurator Tool.
2.3 The Customer may permit the Services to be used by its Affiliates (Affiliate Company Usage), provided:
a) it gives prior written notification to Thrive;
b) in permitting its Affiliates to use the Services, the Customer procures that such Affiliates shall do nothing to put the Customer in breach of this Agreement;
c) in permitting Affiliate Company Usage, the Customer does not exceed the maximum number of Authorised Users specified at Schedule 1.
2.4 If the Configuration at clause 2.2, and/or the usage at clause 2.3 results in the Customer and/or its Affiliates requiring additional instances of the Software, the parties will follow the Change Control Procedure.
2.5 The Customer shall be liable for any breaches by the Affiliates of this agreement as if those Affiliates were a party to this agreement.
2.6 The Customer shall not represent itself as an agent of Thrive nor make any representations on Thrive’s behalf or commit Thrive to any agreements. Further, the Customer shall not make any representations or warranties, guarantees or other commitments with respect to the Services or the Documentation.
2.7 In relation to the Authorised Users, the Customer undertakes that:
a) 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;
b) 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;
c) 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; and
d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Thrive within 5 Business Days of Thrive 's written request at any time or times.
2.8 The Customer and its Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
b) facilitates illegal activity;
c) depicts sexually explicit images;
d) promotes unlawful violence;
e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
f) is otherwise illegal or causes damage or injury to any person or property; and Thrive 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.
2.9 The Customer shall not:
a) 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 this agreement:
i) 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
ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
b) 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
c) save as expressly provided in clause 2.3, use the Services and/or Documentation to provide services to third parties; or
d) subject to clause 2.3 and use 28.1, 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 the Authorised Users, or
e) subject to clause 2.3, attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this 2;
f) introduce or permit the introduction of, any Virus into Thrive 's network and information systems; or
g) create or attempt to create software or documentation which is the same or similar to the Services.
2.10 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 Thrive .
2.11 Subject to clause 2.3, the rights provided under this 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
If the parties agree that Thrive will assist the Customer with the Implementation and any Data Migration, the details will be outlined in the Statement of Work.
4.1 If the Customer requires any changes to the Services (including without limitation, any increase in User Subscriptions), it shall inform Thrive of its requirements and Thrive shall serve a notice on the Customer in a Change Control Notice form (CCN) which shall include:
a) the proposed changes to the Services (or part thereof) in sufficient detail to enable the parties to assess the nature and scope of the proposed changes; and
b) any other information Thrive feels is relevant to assist the Customer.
4.2 Unless the parties otherwise agree, within five Business Days following receipt of the CCN, the parties shall discuss the proposed changes and shall use reasonable endeavours to agree the changes including any changes to the Charges.
4.3 If the parties cannot agree on the changes, then the agreement will continue to be performed on the terms of this agreement. If the parties can agree to the changes (including any changes to the Charges) the agreement will varied to the extent necessary to implement the changes.
5. Services
5.1 Subject to the payment of the Charges on the due dates for payment, Thrive will provide the Services during the Term to the Customer on and subject to the terms of this agreement.
5.2 Thrive warrants that the Services will comply with the Specification.
5.3 No warranties or representations are made or given by Thrive that the Customer’s and their Authorised Users that:
a) the Customer’s and the Authorised User’s use of the Services will be uninterrupted or error-free;
b) subject to clause 5.2, the Services, Documentation and/or the information obtained by the Customer or its Authorised Users through the use of the Services will meet their requirements; or
c) the Customer’s IT infrastructure is suitable and fit for use and has the required capability for the use of the Services.
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and Report Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data and Report Data, save to the extent that such data is unreliable, lost or corrupt due a breach by Thrive of its obligations under this agreement.
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under Data Protection Legislation.
7.2 Thrive may by Customer consent (not to be unreasonably withheld or delayed), at any time on not less than 30 days’ notice, revise this clause 7 by replacing it will any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
7.3 The parties shall comply with the DPA.
7.4 Without prejudice to Thrive’s rights to terminate this agreement in accordance with the provisions of clause 19.2, Thrive reserve the right to suspend the Customer’s access to the Services at any time while and to the extent that, in the reasonable opinion of Thrive, the security or any part of Thrive’s systems is in jeopardy due the Customer’s access of the relevant Service.
8.1 The 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. Thrive 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 the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Thrive . Thrive recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Thrive does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
8.2 The parties acknowledge and agree that the Customer’s access to the Cloud Platform shall be subject to its compliance with https://aws.amazon.com/aup/.
9.1 Thrive undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
9.2 The undertaking at 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Thrive 's instructions, or modification or alteration of the Services by any party other than Thrive or Thrive 's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Thrive 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 use 9.1.
9.3 This agreement shall not prevent Thrive from entering into the same or similar agreements with third parties or from independently, using, selling or licensing documentation, products and/or services which are the same or similar to those provided under this agreement.
9.4 Thrive warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
a) provide Thrive with:
i) all necessary co-operation in relation to this agreement; and
ii) all necessary access to such information as may be required by Thrive; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Thrive may adjust any agreed timetable or delivery schedule as reasonably necessary;
d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Thrive, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
f) ensure that its network and systems and IT Infrastructure comply with the relevant specifications provided by Thrive from time to time; and
g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Thrive 's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
11.1 The Customer shall pay the Charges to Thrive in accordance with this 11 and Schedule 1. Time for payment shall be of the essence.
11.2 Thrive shall invoice the Customer at on the Commencement Date (or the Customer will raise a purchase order as may be agreed by the Customer and Thrive). Thrive will then invoice the Customer at such frequencies as set out in Schedule 1. If Thrive has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Thrive:
a) Thrive may, without liability to the Customer, disable the Customer's and its Authorised Users passwords, accounts and access to all or part of the Services and Thrive shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
b) 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 Thrive 's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
11.3 All amounts and fees stated or referred to in this agreement:
a) shall be payable in pounds sterling unless agreed;
b) are, non-cancellable and non-refundable, unless there is a material breach by Thrive of this agreement; and
c)are exclusive of value added tax, which shall be added to Thrive 's invoice(s) at the appropriate rate.
12.1 The Customer acknowledges and agrees that Thrive and/or its licensors own all intellectual property rights in and to the Thrive IPR. Except as expressly stated herein, this agreement does not grant the Customer any rights to or licences of the Thrive IPR.
12.2 The Customer undertakes that it shall not and shall procure that its Authorised Users shall not:
a) use any Thrive IPR in any way which might prejudice any distinctiveness, validity or the goodwill of Thrive; or
b) use any trademarks or trade name so resembling any trademark or trade names of Thrive so as to be likely to cause confusion or deception.
12.3 Other than the licence granted by Thrive under this agreement, Thrive does not grant any licence of, right in or makes any assignment of any of its IPR.
12.4 The Customer shall promptly give notice to Thrive in the event that it becomes aware of any actual or suspected infringement of Thrive’s IPR.
12.5 In the case of any matter falling within clause 12.4:
a) Thrive shall in its absolute discretion determine what action if any shall be taken in respect of the matter;
b) Thrive shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
c) Thrive shall pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action.
12.6 The Customer shall, at the request and expense of Thrive, provide all reasonable assistance to the other (including but not limited to, the use of its name in or being joined as a party to, proceedings) in connection with any action to be taken by Thrive related to an infringement of the Thrive IPR, provided the Customer is given an indemnity as to costs/ expenses or damages and provided always that the Customer is not infringing the Thrive IPR.
13.1 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:
a) is or becomes publicly known other than through any act or omission of the receiving party;
b) was in the other party's lawful possession before the disclosure;
c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
d) is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 Subject to use 13.4, 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 this agreement.
13.3 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.
13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.5 The Customer acknowledges that details of the Services, and the results of any application vulnerability tests and performance tests of the Services, constitute Thrive 's Confidential Information.
13.6 Thrive acknowledges that the Customer Data is the Confidential Information of the Customer.
13.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.8 The above provisions of this 13 shall survive termination of this agreement, however arising.
14.1 The parties shall at all times comply with all applicable laws , statutes and regulations relating to slavery, involuntary servitude, debt bondage, force labour or human trafficking (including the Modern Slavery Act 2015).
14.2 Breach of this clause 14 shall be deemed to be material breach.
15.1 The Customer shall defend, indemnify and hold harmless Thrive 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:
a) the Customer is given prompt notice of any such claim;
b) Thrive provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
c) the Customer is given sole authority to defend or settle the claim.
15.2 Thrive shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Commencement Date, 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:
a) Thrive is given prompt notice of any such claim;
b) the Customer provides reasonable co-operation to Thrive in the defence and settlement of such claim, at Thrive 's expense; and
c) Thrive is given sole authority to defend or settle the claim.
15.3 In the defence or settlement of any claim, Thrive 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 5 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
15.4 In no event shall Thrive, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a) a modification of the Services or Documentation by anyone other than Thrive ; or
b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Thrive ; or
c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Thrive or any appropriate authority.
15.5 The foregoing states the Customer's sole and exclusive rights and remedies, and Thrive’s (including Thrive 's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
16.1 Except as expressly and specifically provided in this agreement:
a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Thrive shall assume no responsibility and shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Thrive by the Customer in connection with the Services, or any actions taken by Thrive at the Customer's direction;
b) 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 this agreement; and
c) the Services and the Documentation are provided to the Customer on an "as is" basis.
16.2 Nothing in this agreement excludes the liability of either party:
a) for death or personal injury caused by Thrive 's negligence; or
b) for fraud or fraudulent misrepresentation.
16.3 Subject to 16.1 and 16.2:
a) neither party shall 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 this agreement; and
b) both party’s total aggregate liability in contract, tort including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement (including any liability on the part of Thrive arising out of or in connection with clause 15.2), shall be limited to the amount of the Charges received by Thrive during the 12 months immediately preceding the date on which the claim arose.
17.1 Thrive shall affect and shall maintain in full force and effect during the course of this agreement the following insurances:
a) Professional indemnity cover in the sum of £10 million; and
b) Public and employer liability cover in the sum of £5 million.
18.1 Unless otherwise agreed in writing by the parties, the Customer undertakes and agrees that it will not during the term of this agreement and for a period of 9 months following termination (howsoever arising) that it will not whether directly or indirectly:
a) Solicit or endeavour to solicit or entice away from Thrive any employee, worker, agent or sub-contractor; or
b) Offer to employ or engage or otherwise facilitate the employment or engagement of any employee, worker, agent or sub-contractor of Thrive.
19.1 This agreement shall, unless otherwise terminated as provided in this 19, commence on the Commencement Date and shall continue for the Term.
19.2 60 days before expiration of the Term Thrive will provide the Customer with details of its pricing, together with other variations to this agreement (Proposal), for a further term of 3 years (Renewal Term). If the Customer does not service notice to terminate this agreement on Thrive 30 days or more prior to the expiration of the Term, this agreement will be extended as varied by the terms of the Proposal by the Renewal Term.
19.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment;
b) the other party commits a material breach of any other term of this agreement 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;
c) the other party repeatedly breaches any of the terms of this agreement 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 terms of this agreement;
d) 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, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
e) 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;
f) 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;
g) 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;
h) 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;
i) 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;
j) 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;
k) 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 lause 19.2(d) to 19.2(j) (inclusive); or
l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
19.4 On termination of this agreement for any reason:
a) all licences granted under this agreement shall immediately terminate [and the Customer shall immediately cease all use of the Services and/or the Documentation;
b) 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;
c) Thrive may destroy or otherwise dispose of any of the Customer Data in its possession unless Thrive receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Thrive shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the 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). The Customer shall pay all reasonable expenses incurred by Thrive in returning or disposing of Customer Data; and
d) 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.
Thrive 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 Thrive 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, epidemic, pandemic, accident, breakdown of plant or machinery, fire, flood, storm or default of Thrive s or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
21.1 Save in respect where this agreement is terminated for any reason set out in clause 19.2, Thrive shall , by agreement with the Customer and at the Customer’s cost, support the Customer and prepare an exit plan (Exit Plan) in anticipation or expiry of this agreement. Any costs arising out of or in connection with the execution of the Exit Plan shall be borne by the Customer unless otherwise expressly agreed in writing between the parties.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
Subject to clause 19.1, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
26.2 If any provision or part-provision of this agreement is deemed deleted under 26.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
27.1 This agreement 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.
27.2 Each party acknowledges that in entering into this agreement it does not rely on[, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
27.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
27.4 Nothing in this clause shall limit or exclude any liability for fraud.
28.1 The Customer shall not, without the prior written consent of Thrive, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
28.2 Thrive 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 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.
31.1 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.
31.2 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.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). This has been entered into on the date stated at the beginning of it.
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