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1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

Authorised Users: those employees, agents and independent contractors of the Subscriber who are authorised by the Subscriber to use the Services and the Documentation, as further described in clause 2;

Back-Up Delivery Fees: any fees that may be payable pursuant to clause 4.6;

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Confidential Information: information that is proprietary or confidential (however recorded or preserved) disclosed by a party to the other party or to which the other party has access pursuant to this Agreement including but not limited to:

  1. any information that would be regarded as confidential by a reasonable business person relating to:
    1. the business, affairs, Subscribers, client, suppliers, plans of the disclosing party; and
    2. the operation, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
  2. any information identified as Confidential Information in clause 9.6;

Subscriber Data: the data (including any personal data) inputted by the Subscriber or by Authorised Users, or data of the Subscriber or Authorised Users which is inputted by Pilio or a Data Collector on the Subscriber's behalf or otherwise provided to Pilio by a Data Collector on the Subscriber’s behalf, for theServices or facilitating the Subscriber's use of the Services but excluding all authentication information provided in relation to the Subscriber;

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) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;

Documentation: the document(s) made available to the Subscriber by Pilio from time to time which sets out a description of the Services and the user instructions for the Services;

Effective Date: the date of subscribing online to the service;

Hosting Provider: a hosting provider engaged by Pilio to enable Pilio to provide the Services on a hosted subscription basis;

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Losses: means all losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including reasonable legal fees) disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties;

Minor Update: any update to the Software except those constituting an Upgrade; Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day;

Reports: information displayed, downloaded or otherwise copied by the Subscriber generated as a result of its use of the Services which may be solely and strictly Subscriber Data and/or may comprise of a comparison of Subscriber Data with System Data, but for the avoidance of doubt shall exclude System Data itself;

Services: the subscription services provided by Pilio to the Subscriber under this Agreement via https://goodenergy.piliogroup.com or any other website notified to the Subscriber by Pilio from time to time using Pilio’s System Data, as more particularly described in the Documentation and for the Permitted Purpose;

Software: the online software applications provided by Pilio as part of the Services;

Subscription Term: the period described in clause 12.1;

Support Services: the support in relation to the use of, and the identification and resolution of errors in, the Services as set out in Schedule 1;

System Data: Pilio’s data sets and any changes and/or enhancements to Pilio’s data sets which may include when Subscriber Data is amalgamated with Pilio data sets in an aggregated manner or otherwise by as well as any changes to the Software resulting from the use of the Services by the Subscriber or provision of any Subscriber Data by the Subscriber, including any modification to the configuration of the Software or algorithm changes in respect of the Software;

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;

Upgrade: a major version upgrade of the Software intended to have new or improved functionality;

User Agreement: the end user licence terms in respect of the Services that Pilio may make available to Authorised Users from time to time;

User Subscriptions: the user subscriptions purchased by the Subscriber pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement; and

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.

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 and a reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or consolidated from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.7 Any words that follow include, includes, including, in particular or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.

1.8 A reference to writing or written includes e-mail, but not faxes.

1.9 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. USER SUBSCRIPTIONS

2.1 Subject to the Subscriber’s payment of amounts due under this Agreement, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, Pilio hereby grants to the Subscriber a no cost non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation to view and download the Reports during the Subscription Term solely for the Subscriber's internal business operations and for the Permitted Purpose.

2.2 Upon setting-up a Pilio Health Check Account the Subscriber will be able to immediately complete the Health Check questionnaire. Pilio shall provide reasonable assistance to the Subscriber for setting up and managing the access and passwords of the Authorised Users.

2.3 In relation to the Authorised Users, the Subscriber undertakes that:

  1. the Services may only be used by the Authorised Users who must be authorised officers, directors, employees, agents and subcontractors of the Subscriber;
  2. it shall not, and shall procure that the Authorised Users shall not, allow 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;
  3. it shall, and shall procure that the Authorised Users shall, keep confidential and not under any circumstances share passwords or access details to facilitate access to the Services with any third party (including, the Subscriber’s employees, officers, agents or contractors);
  4. it shall permit Pilio to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Pilio's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Subscriber's normal conduct of business;
  5. if any of the audits referred to in clause 2.3(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Pilio’s other rights, the Subscriber shall promptly disable such passwords and Pilio shall not issue any new passwords to any such individual; and

2.4 The Subscriber shall not, and shall procure that Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is in breach of the User Agreement.

2.5 The Subscriber shall not:

  1. 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:
    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software and/or Documentation (as applicable) in any form or media or by any means; or
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services and/or Software; or
  2. access all or any part of the Services and/or Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
  3. use the Services and/or Documentation and/or Reports to provide services to third parties; or
  4. subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation and/or Reports available to any third party except the Authorised Users, or
  5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and

2.6 The Subscriber 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 Pilio.

2.7 The rights provided under this clause 2 are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.

3. SERVICES AND SUPPORT SERVICES

3.1 Pilio shall, during the Subscription Term, provide the Services and make available the Documentation to the Subscriber on and subject to the terms of this Agreement.

3.2 Pilio shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except:

  1. when Pilio is carrying out a Minor Update to the Services in respect of which Pilio shall not be obligated to provide the Subscriber with prior notice;
  2. when Pilio is carrying out an Upgrade to the Services, provided that Pilio has given 10 Business Days’ prior written notice;
  3. for planned maintenance carried out during the maintenance window of 10.00 pm to 5.00 am UK time;
  4. for maintenance performed during Normal Business Hours, provided that Pilio has used reasonable endeavours to give the Subscriber at least 5 Business Days’ notice in advance;
  5. unscheduled maintenance performed outside Normal Business Hours, for which Pilio will use reasonable endeavours to give the Subscriber at least 6 hours’ notice in advance; and
  6. emergency maintenance, in respect of which Pilio will use reasonable endeavours to notify the Subscriber as soon as possible.

3.3 Pilio shall provide the Support Services to the Subscriber during the term of this Agreement as specified in Schedule 1 and pursuant to this clause 3. Pilio may amend the Support Services in its absolute discretion, acting reasonably, from time to time.

4. SUBSCRIBER DATA AND SYSTEM DATA

4.1 The Subscriber shall own all right, title and interest in and to all of the Subscriber Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Data.

4.2 Good Energy will have an admin account to be able to monitor sign-ups to the Energy Saving Health Check. Good Energy will not have access to any personal details of Subscribers (e.g. email addresses). Good Energy will be able to see the Businesses sign-up and view the Energy Saving Health Check scores and reports.

4.3 The Subscriber hereby grants to Pilio an irrevocable, non-exclusive, royalty-free licence:

  1. for the Subscription Term and any post-termination period pursuant to clause 14.4(d), to use the Subscriber Data to provide the Services to the Subscriber;
  2. on a perpetual, sub-licensable, transferable basis, to use the Subscriber Data to improve or evolve the Software and/or Services or any other services that Pilio may provide from time to time and enhance Pilio’s System Data provided that Pilio does not use Subscriber Data for such purposes in a way which identifies the Subscriber without the Subscriber’s permission.

4.4 All Intellectual Property Rights in the Systems Data and Reports are vested in Pilio and to the extent that such Intellectual Property Rights are for whatever reason vested in the Subscriber than the Subscriber hereby assigns all Intellectual Property Rights in the System Data with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Pilio.

4.5 Pilio grants to the Subscriber a licence to use the Reports for its own internal business purposes for the Subscription Term and, in respect of Reports that the Subscriber has downloaded during the Subscription Term pursuant to the licence set out in this clause 5.5, to continue to use such reports for its internal business purposes on a royalty-free, perpetual basis..

4.6 Pilio shall, on request, transmit to the Subscriber the back-up of Subscriber Data retained by Pilio and the Subscriber shall pay the Back-Up Delivery Fees, in accordance with clause 9, provided that the requirement of the Subscriber to obtain a the back-up of Subscriber Data is not the fault of Pilio.

4.7 The Subscriber warrants to Pilio that any Subscriber Data inputted by or on behalf of the Subscriber will not:

  1. breach the provisions of any law, statute or regulation;
  2. infringe the Intellectual Property Rights or other legal rights of a third party; or
  3. give rise to any cause of action against Pilio.

4.8 Notwithstanding clause 13, the Subscriber shall indemnify, and keep indemnified Pilio, its officers, directors, employees, agents, successors and assignees at all times from and against all Losses, which are suffered by, and defend, and hold harmless against all such Losses which are brought or threatened against or incurred by, Pilio, its officers, directors, employees, agents, successors and assignees, in respect of the warranty provided at clause 5.7

5. THIRD PARTY PROVIDERS

5.1 The Subscriber 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.

5.2 Pilio 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 anythe Subscriber, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Subscriber and the relevant third party, and not Pilio. Pilio recommends that the Subscriber refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Pilio does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

6. PILIO'S OBLIGATIONS

6.1 Pilio undertakes that the Services will be performed substantially in accordance with the Services Specification and Documentation and that the Services and Support Services will be performed with reasonable skill and care.

6.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Pilio’s instructions, or modification or alteration of the Services by any party other than Pilio or Pilio’s duly authorised contractors or agents. If the Services or Support Services do not conform with the foregoing undertaking, Pilio will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Subscriber with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Subscriber's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Pilio:

  1. does not warrant that the Subscriber's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the Reports obtained by the Subscriber through the Services will meet the Subscriber's requirements; and
  2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Subscriber acknowledges that the Services, Reports and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3 For the avoidance of doubt, where the Subscriber cannot access the Services due to any of the following, Pilio shall not be in breach of its obligations under this Agreement:

  1. a fault or failure of the internet or any public telecommunications network;
  2. a fault or failure of the Subscriber’s computer systems or networks;
  3. any breach by the Subscriber of this Agreement; or
  4. any unauthorised usage.

6.4 Pilio warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7. SUBSCRIBER'S OBLIGATIONS

7.1 The Subscriber shall:

  1. provide Pilio with:
    1. all necessary co-operation in relation to this Terms of Use Agreement; and
    2. all necessary access to such information as may be required by Pilio;
    in order to provide the Services, including but not limited to Subscriber Data, security access information and configuration services;
  2. comply with all applicable laws and regulations with respect to its activities under this Agreement;
  3. comply, and shall procure that the Authorised Users comply, with Pilio’s User Agreement;
  4. carry out all other Subscriber responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Subscriber's provision of such assistance as agreed by the parties, Pilio may adjust any agreed timetable or delivery schedule as reasonably necessary;
  5. 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;
  6. obtain and shall maintain all necessary licences, consents, and permissions necessary for Pilio, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
  7. ensure that its network and systems comply with the relevant specifications provided by Pilio from time to time; and (h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Pilio’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Subscriber's network connections or telecommunications links or caused by the internet.

7.2 Without prejudice to the Subscriber’s other obligation the Services shall be provided on the following terms:

  1. the Subscriber acknowledges that Pilio is dependent on a Hosting Provider to provide the Services. Pilio will use its reasonable endeavours to select a reputable Hosting Provider, taking into account the commercial aspects of the offering of such Hosting Provider including prices of the relevant services;
  2. notwithstanding any other provision of this Agreement, Pilio does not undertake or agree to provide the Services at a service level which exceeds those provided to Pilio by the Hosting Provider;
  3. the Subscriber acknowledges and agrees that the Software and or Services may be inaccessible or inoperable from time to time including as a result of equipment malfunctions, repairs or replacements carried out by the Hosting Provider or reasons beyond Pilio’s reasonable control;
  4. Pilio may terminate this Agreement if the agreement between Pilio and the Hosting Provider is terminated as a result of any breach by Pilio that is caused by the Subscriber's breach of this Agreement which entitles the Hosting Provider to terminate, suspend or take action against Pilio pursuant to its hosting agreement with Pilio. 7.3 The Subscriber acknowledges that, where specified in the Services Specification, the Services will only be designed to be compatible only with that software and those systems specified as compatible in the Services Specification; and that unless expressly agreed otherwise; Pilio does not warrant or represent that the Services will be compatible with any particular software or systems.

8. PROPRIETARY RIGHTS

8.1 The Subscriber acknowledges and agrees that Pilio and/or its licensors own all Intellectual Property Rights in the Services, Software and the Documentation. Except as expressly stated herein, this Agreement does not grant the Subscriber any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software or the Documentation.

8.2 Pilio confirms that it has all the rights in relation to the Services, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

9. CONFIDENTIALITY

9.1 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:

  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other party's lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving party, which independent development can be shown by written evidence.

9.2 Subject to clause 9.4, 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.

9.3 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.

9.4 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 clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. Further, Pilio is entitled to use the Subscriber Data in the manner provided under clause 4.3.

9.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

9.6 The Subscriber acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Pilio’s Confidential Information.

9.7 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.

9.8 The above provisions of this clause 11 shall survive termination of this Agreement, however arising.

10. INDEMNITY

10.1 The Subscriber shall defend, indemnify and hold harmless Pilio 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 Subscriber's use of the Services and/or Documentation and/or Reports, provided that:

  1. the Subscriber is given prompt notice of any such claim;
  2. Pilio provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber's expense; and
  3. the Subscriber is given sole authority to defend or settle the claim.

10.2 Pilio shall defend the Subscriber, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:

  1. Pilio is given prompt notice of any such claim;
  2. the Subscriber provides reasonable co-operation to Pilio in the defence and settlement of such claim, at Pilio’s expense; and
  3. Pilio is given sole authority to defend or settle the claim.

10.3 In the defence or settlement of any claim, Pilio may procure the right for the Subscriber 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 2 Business Days' notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.

10.4 In no event shall Pilio, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:

  1. a modification of the Services or Documentation by anyone other than Pilio; or
  2. the Subscriber's use of the Services or Documentation in a manner contrary to the instructions given to the Subscriber by Pilio; or
  3. the Subscriber's use of the Services or Documentation after notice of the alleged or actual infringement from Pilio or any appropriate authority.

10.5 The foregoing and clause 11.4(b) states the Subscriber's sole and exclusive rights and remedies, and Pilio’s (including Pilio's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.

11. LIMITATION OF LIABILITY

11.1 The Subscriber specifically acknowledges and agrees that the Services and/or Reports provided by Pilio pursuant to this Agreement are to be used in accordance with the Permitted Purpose only and in any event. Pilio will not in any way be liable for any expenditure incurred nor for any reliance placed by the Subscriber on the Services and or Reports for making any decisions, including decisions of a capital expenditure nature, without the Subscriber’s own review and consideration of all appropriate information by a suitably qualified professional.

11.2 Except as expressly and specifically provided in this Agreement:

  1. the Subscriber acknowledges that the Reports and any results obtained from the use of the Services and the Documentation by the Subscriber are advisory only and the Subscriber assumes sole responsibility for such results, and for conclusions drawn from such use. Pilio shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Pilio by the Subscriber in connection with the Services, or any actions taken by Pilio at the Subscriber's direction;
  2. 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
  3. the Services and the Documentation are provided to the Subscriber on an "as is" basis.

11.3 Nothing in this Agreement excludes the liability of Pilio:

  1. for death or personal injury caused by Pilio’s negligence; or
  2. for fraud or fraudulent misrepresentation.

11.4 Subject to clause 11.1 and clause 11.3:

  1. Pilio shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution, through indemnification or otherwise for any loss of profits or anticipated savings, loss of revenue or income, 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;

12. TERM, SUSPENSION AND TERMINATION

12.1 This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue until:

  1. either party notifies the other party of termination, in writing, giving at least two (2) months’ notice; or
  2. otherwise terminated in accordance with the provisions of this Agreement.

12.2 Without affecting any other right or remedy available to it, where any breach of clauses 2.4, 2.5, or 4.7 occurs, Pilio reserves the right to disable the Subscriber's access to any material which has triggered the relevant breach and/or to suspend the Subscriber’s access to the Service until such time as the breach is fully resolved.

12.3 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:

  1. 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 30 days after being notified in writing to do so;
  2. 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;
  3. 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;
  4. 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;
  5. 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;
  6. 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;
  7. 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;
  8. 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;
  9. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3(c) to clause 14.3(i) (inclusive); or
  10. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.4 On termination of this Agreement for any reason:

  1. clauses 5.2, 4.6, 9, 10, 11, 12.4, 14, 15, 17, 18, 20, 23, 24, 25, 26 and any other provisions which expressly or impliedly should survive termination shall so survive;
  2. unless expressly stated otherwise, all licences granted under this Agreement shall immediately terminate and the Subscriber shall immediately cease all use of the Services, Support Services and/or the Documentation;
  3. 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;
  4. Pilio may destroy or otherwise dispose of any of the Subscriber Data in its possession unless Pilio receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Subscriber of the then most recent back-up of the Subscriber Data. Pilio shall use reasonable commercial endeavours to deliver the back-up to the Subscriber within 30 days of its receipt of such a written request, provided that the Subscriber has, at that time, paid all fees and charges (including any Back-Up Delivery Fees) outstanding at and resulting from termination (whether or not due at the date of termination). The Subscriber shall pay all reasonable expenses incurred by Pilio in returning or disposing of Subscriber Data;
  5. the Subscriber shall pay to Pilio any amounts due to it under this Agreement; and
  6. 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.

13. DATA PROTECTION

13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

13.2 The Subscriber shall ensure that Subscriber Data does not include personal data.

13.3 If Pilio processes any personal data (e.g. email address) on the Subscriber’s behalf when performing its obligations under this Agreement, the parties acknowledge that for the purpose of the Data Protection Legislation, the Subscriber is the data controller and Pilio is a data processor. In any such case and without prejudice to the generality of clause 13.1:

  1. the Subscriber shall ensure that the Subscriber is entitled to transfer the relevant personal data to Pilio so that Pilio may lawfully use, process and transfer the personal data in accordance with this Agreement on the Subscriber's behalf;
  2. the Subscriber shall ensure that any relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Laws and all other applicable data protection legislation;
  3. Pilio shall process the personal data only on the written instructions reasonably given by the Subscriber from time to time unless Pilio is required by the laws of any member of the European Union, the United Kingdom (meaning the UK Data Protection Legislation) or the European Union applicable to Pilio to process the personal data. Where Pilio is relying on such applicable laws as the basis for processing, Pilio shall promptly notify the Subscriber of this before performing the processing required by such applicable laws unless these laws prohibit Pilio from notifying the Subscriber;
  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 appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
  5. Pilio shall ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
  6. Pilio shall assist the Subscriber, at the Subscriber’s cost, in respect to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  7. the Subscriber agrees that Pilio may transfer personal data outside the European Economic Area provided that the following conditions are fulfilled: (a) the Subscriber or Pilio has provided appropriate safeguards in relation to the transfer; (b) the data subject has enforceable rights and effective legal remedies; and (c) Pilio complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any personal data that is transferred;
  8. Pilio shall make available to the Subscriber a list of any sub-contractors and service providers engaged in the processing of the Subscriber’s personal data and include in any contract with such sub-contractors and service providers who process personal data on the Subscriber’s behalf, provisions which are equivalent to those in this clause 15;
  9. Pilio shall notify the Subscriber without undue delay on becoming aware of a personal data breach;
  10. Pilio shall at the written direction of the Subscriber, delete or return the personal data and copies thereof to the Subscriber on termination of this Agreement unless required by applicable law to store the personal data; and
  11. maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and allow for audits by the Subscriber or the Subscriber's designated auditor.

13.4 The Subscriber consents to Pilio’s use of sub-contractors and service providers in accordance with clause 13.3(h).

13.5 The Subscriber acknowledges that Pilio is reliant on the Subscriber for instructions as to the extent to which Pilio is entitled to use and process any personal data. Consequently, Pilio will not be liable for any claim brought by a data subject arising from any action or omission by Pilio to the extent that such action or omission resulted directly from the Subscriber's instructions.

13.6 In this clause 13, personal data, data controller, data processor, data subject, process and processing shall have the meanings given to them in the Data Protection Laws.

14. FORCE MAJEURE

Pilio shall have no liability to the Subscriber 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 Pilio or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Subscriber is notified of such an event and its expected duration.

15. CONFLICT

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.

16. VARIATION

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

17. WAIVER

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.

18. RIGHTS AND REMEDIES

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

19. SEVERANCE

19.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20. ENTIRE AGREEMENT

20.1 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.

20.2 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.

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

20.4 Nothing in this clause shall limit or exclude any liability for fraud.

21. ASSIGNMENT

21.1 The Subscriber shall not, without the prior written consent of Pilio, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21.2 Pilio 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.

22. NO PARTNERSHIP OR AGENCY

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).

23. THIRD PARTY RIGHTS

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.

24. NOTICES

24.1 Any notice required to be given under this Agreement shall be emailed:

  1. Pilio’s notice details are as follows: support@piliogroup.com;
  2. the Subscribers notice details is the email used to set-up the account or the business address or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in this Agreement.

24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.

25. FURTHER ASSURANCE

Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.

26. GOVERNING LAW AND JURISDICTION

26.1 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.

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

This Agreement has been entered into on the date the Subscriber set up an account and accept the Terms of Use (i.e. by ticking the Accept Terms of User box on registration).