Terms & conditions 

1. Interpretation

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

Additional Fees: the amount payable by the Customer to Contagious for the Additional Services.

Additional Services: the additional services (not set out in the Specification) otherwise agreed in writing by the Customer and Contagious.

Additional Benefits: any additional benefits included with an annual User Subscription including but not limited to events and presentations.

Advisory Services: training courses, workshops, custom research, presentations and advisory projects.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 6.4.

Basic Fees: the fixed amount payable by the Customer to Contagious for the Basic Services.

Basic Services: the services as set out in the Order and/or the Specification.

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

Conditions: these terms and conditions as amended from time to time in accordance with clause 20.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 15.

Customer Data: the data inputted by the Customer, Authorised Users, or Contagious on the Customer's behalf for the purpose of using the Services or facilitating the Customer's and the Authorised Users’ use of the Services. Such data includes personal data as such term is described in the GDPR.

Data Controller: has the meaning given to that term in the GDPR.

Data Processor: has the meaning given to that term in the GDPR.

Data Subject: has the meaning given to that term in the GDPR.

Documentation: the information, marketing tools and documents made available to the Customer by Contagious online via www.contagious.comwww.contagious.iowww.magazine.contagious.com and www.mostcontagious.com or such other web address notified by Contagious to the Customer from time to time.

Effective Date: the date of Contagious’ acceptance of the Customer’s Order for Services.

Fair Usage Policy: Authorised Users shall not exceed 25 downloads in any 24 hour period (or such other amount as Contagious may from time to time in its discretion decide).

Fees: the fees payable for the Advisory Services.

GDPR: General Data Protection Regulation (Regulation (EU) 2016/679).

Initial Subscription Term: 1 year.

Order: the Customer's order for Services as set out in the Customer's purchase order form or acceptance of Contagious’ quotation howsoever received.

Personal Data: has the meaning given to that term in the GDPR.

Marketing Intelligence: use of the Documentation provided by Contagious to the Customer via www.contagious.comwww.contagious.iowww.magazine.contagious.com and www.mostcontagious.com or any other website notified to the Customer by Contagious from time to time as set out in the Specification.

Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.

Renewal Period: the period described in clause 18.1.

Services: Marketing Intelligence and the Advisory Services provided by Contagious to the Customer from time to time, as more particularly described in the Specification.

Software: the online software applications provided by Contagious as part of the Services.

Specification: the description or specification of the Services provided in writing by Contagious to the Customer.

Subscription Fees: the subscription fees payable by the Customer to Contagious for the Marketing Intelligence, as set out in the Specification.

Subscription Term: has the meaning given in clause 18.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 11.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.3 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.4 A reference to writing or written includes email.

 

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when Contagious issues acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any descriptive matter or advertising issued by Contagious, and any descriptions or illustrations contained on its website, are published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given shall not constitute an offer, and is only valid for a period of [20] Business Days from its date of issue.

 

3. Supply of Services

3.1 Contagious shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2 Contagious shall use all reasonable endeavours to meet any performance dates (if any) specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 Contagious shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and shall notify the Customer in any such event.

3.4 Contagious warrants to the Customer that the Services will be provided using reasonable care and skill.

 

4. Changes

4.1 If either of Contagious or the Customer wishes to change the scope of the Services, they agree to work together to identify and agree such changes and the impact which the proposed changes will have on:

(a) the Services;

(b) the existing charges;

(c) the timetable of the Services; and

(d) any of these Conditions.

4.2  Save as set out in clause 3.3, unless both parties agree, there shall be no change to the Services or the existing charges.

 

5. Customer's obligations

5.1  The Customer shall:

(a)  ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

(b)  co-operate with Contagious in all matters relating to the Services;

(c)  provide Contagious with such information and materials as it may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(d) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

(e) comply with any additional obligations as set out in the Specification;

(f)  provide Contagious with all necessary access to such information as may be required by Contagious in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(g) comply with all applicable laws and regulations with respect to its activities under the Contract;

(h)  carry out all other Customer responsibilities 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, Contagious may adjust any agreed timetable or delivery schedule as reasonably necessary;

(i)  ensure that the Authorised Users use the Marketing Intelligence and the Documentation in accordance with these Conditions and shall be responsible for any Authorised User's breach of them;

(j) ensure that its network and systems comply with the relevant specifications provided by Contagious from time to time; and

(k) be solely responsible for procuring and maintaining its network connections from its systems to the Marketing Intelligence, 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.

5.2  If Contagious’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) Contagious shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Contagious’ performance of any of its obligations;

(b) Contagious shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from its failure or delay to perform any of its obligations as set out in this clause 5.2; and

(c) the Customer shall reimburse Contagious on written demand for any costs or losses sustained or incurred by it arising directly or indirectly from the Customer Default.

 

6. User subscriptions

6.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 6.4 and clause 11.1, the restrictions set out in this clause 6 and the other Conditions, Contagious hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Marketing Intelligence and the Documentation during the Subscription Term solely for the Customer's internal business operations.

6.2  The Customer and the Authorised Users may search, view, download, copy, revise and print out the Documentation for business purposes only.

6.3 The Customer shall procure that the Authorised Users shall at all times comply with the Fair Usage Policy.

6.4  The Customer shall not and shall ensure that the Authorised Users shall not:

(a) attempt to duplicate, modify, disclose or distribute any portion of the Marketing Intelligence; or

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Marketing Intelligence, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(c) use the Marketing Intelligence to provide hosting services to third parties; or

(d) attempt to obtain, or assist others in obtaining, access to the Documentation, other than as provided in these Conditions; or

(e) access all or any part of the Marketing Intelligence and Documentation in order to build a product or service which competes with the Marketing Intelligence and/or the Documentation

6.5 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 Marketing Intelligence 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) Authorised Users shall keep a secure password for their use of the Marketing Intelligence and Documentation, and Authorised Users shall keep their password confidential;

(d) it shall permit Contagious to audit the Services in order to establish the name of each Authorised User.  Such audit may be conducted no more than once per quarter, at Contagious' expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

(e) if any of the audits referred to in clause 6.5(d) reveal that the Customer has underpaid Subscription Fees to Contagious, then without prejudice to Contagious' other rights, the Customer shall pay to Contagious an amount equal to such underpayment within [10] Business Days of the date of the relevant audit.

6.6 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Marketing Intelligence 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)  in a manner that is otherwise illegal or causes damage or injury to any person or property; and Contagious 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.

6.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Marketing Intelligence and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Contagious.

6.8 The rights provided under this clause 6 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

6.9 Any Additional Benefits included with each User Subscription are only valid for 12 months from the Effective Date or the start of each Renewal Period and shall not be rolled over to the following year.

 

7. Additional user subscriptions

7.1  Subject to clause 7.2 and clause 7.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Specification and Contagious shall grant access to the Marketing Intelligence and the Documentation to such additional Authorised Users in accordance with these Conditions.

7.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Contagious in writing. Contagious shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.

7.3 If Contagious approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Contagious' invoice, pay to Contagious the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

 

8. Marketing intelligence

8.1 Contagious shall, during the Subscription Term, provide the Marketing Intelligence and make available the Documentation to the Customer on and subject to these Conditions.

8.2 Contagious shall use commercially reasonable endeavours to make the Marketing Intelligence available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Contagious has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.

8.3 Contagious will, as part of the Services and at no additional cost to the Customer, provide the Customer with Contagious' standard customer support services during Normal Business Hours.  The Customer may purchase enhanced support services separately at Contagious' then current rates.

8.4 The undertaking at clause 3.4 shall not apply to the extent of any non-conformance which is caused by use of the Marketing Intelligence contrary to Contagious' instructions, or modification or alteration of the Marketing Intelligence by any party other than Contagious or Contagious' duly authorised contractors or agents. If the Marketing Intelligence do not conform with the foregoing undertaking, Contagious will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 3.4 in relation to the Marketing Intelligence.  Notwithstanding the foregoing, Contagious:

(a) does not warrant that the Customer's use of the Marking Intelligence will be uninterrupted or error-free; or that the Marketing Intelligence, Documentation and/or the information obtained by the Customer through the Marketing Intelligence will meet the Customer's requirements; and

(b) 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 Customer acknowledges that the Marketing Intelligence and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.5 The Contract shall not prevent Contagious from entering into similar contracts with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract with the Customer.

8.6 Contagious warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.

8.7 The Customer acknowledges that they (and the Authorised Users) are solely responsible for the appropriate use and adaption of the Documentation for their own use.

8.8 The Customer recognises and accepts that the Documentation is provided without any guarantees, conditions or warranties as to its accuracy.

8.9 The Customer recognises and accepts that the information provided via the Marketing Intelligence do not constitute a recommendation that the Customer or an Authorised User enter into a particular transaction, nor a representation that any product, service, act or omission detailed on the website is suitable or appropriate for the Customer or any Authorised User.  The Customer accepts that certain products, services, acts or omissions detailed on the website may involve significant risks, and unless the Customer or an Authorised User has fully understood all such risks and independently determined that such transactions are appropriate for them, they should not enter into any transactions. 

8.10 The Documentation or any information on the website shall not be construed as legal, business, financial, regulatory, tax, accounting or other professional advice.

 

9. Customer data

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

9.2 Contagious shall follow its archiving procedures for Customer Data as such document may be amended by Contagious in its sole discretion from time to time.  In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Contagious to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Contagious in accordance with the archiving procedure. Contagious shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Contagious to perform services related to Customer Data maintenance and back-up).

9.3 Contagious shall, in providing the Marketing Intelligence, comply with its privacy and security policy, as such document may be amended from time to time by Contagious in its sole discretion.

  • Where a party is to be a Processor of Personal Data under these terms on behalf of the other party, the other party being a Controller in respect of that Personal Data, then the party who is the Processor shall in relation to the Personal Data provided by the Controller:

    • procure that appropriate technical and organisational measures are taken against unauthorised or unlawful processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data, taking into account the nature of the Personal Data;

    • in relation to such Personal Data, act only on the instructions of the Controller as set out in these Conditions or as documented in writing;

    • process such Personal Data only to the extent, and in such manner, as is necessary for the purposes of these Conditions;

    • operate appropriate security procedures, processes and systems to ensure that unauthorised persons do not have access to any equipment used to process such Personal Data or to the Personal Data itself;

    • use reasonable endeavours to ensure the reliability of its employees with access to such Personal Data and ensure that all such employees are under obligations of confidentiality in relation to such Personal Data;

    • obtain prior written consent from the Controller before transferring such Personal Data to any sub-contractor and ensure that any such sub-contractor is engaged on a written agreement giving commitments in relation to the processing of such Personal Data no less onerous than set out in these Conditions. The Processor shall remain liable to the Controller for the acts of any such sub-contractor in relation to such Personal Data;

    • not transfer such Personal Data outside the EEA without the consent of the Controller;

    • provide reasonable assistance to the Controller to assist the Controller to meet a request or complaint made by a Data Subject in respect of such Personal Data in order to meet the requirements of Chapter III of the GDPR in respect of Data Subject rights;

    • provide reasonable assistance to the Controller to demonstrate compliance with this clause 9 and allow for and contribute to audits conducted by the Data Controller;

    • notify the Controller if, in its opinion, an instruction given by the Controller breaches the GDPR; and

    • on termination of the Contract or the end of the carrying out of data processing, delete or return all such Personal Data to the Controller and delete existing copies unless required by law.

10. Third party providers

The Customer acknowledges that the Marketing Intelligence 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.  Contagious makes no representation 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 Contagious.  Contagious 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.  Contagious does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Marketing Intelligence.

 

11. Charges and payment

11.1 The Customer shall pay the Subscription Fees for the Marketing Intelligence to Contagious for the User Subscriptions in accordance with the Specification.

11.2 The Customer shall on the Effective Date provide to Contagious valid, up-to-date and complete credit card details or approved purchase order information acceptable to Contagious and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a) its credit card details to Contagious, the Customer hereby authorises Contagious to bill such credit card:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii) subject to clause 18.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

(b) its approved purchase order information to Contagious, Contagious shall invoice the Customer:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii) subject to clause 18.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.

11.3 If Contagious has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Contagious:

(a) Contagious may, without liability to the Customer, disable the Customer's and all Authorised User’s password, account and access to all or part of the Marketing Intelligence and Contagious 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 4% over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

11.4 Contagious shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 6.3 pursuant at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Specification shall be deemed to have been amended accordingly.

11.5 The Advisory Services are provided for a fixed price and the total price for the Advisory Services shall be the amount set out in the Specification. The total price shall be paid to Contagious within 7 days of receipt of an invoice or as set out in the Specification if different.

11.6 All amounts due under the Contract shall be paid by the Customer to Contagious in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

11.7 All amounts and fees stated or referred to in these Conditions:

(a) are non-refundable (but may be transferrable to third parties or other services provided by Contagious as agreed by Contagious in its’ absolute discretion);

(b) are exclusive of value added tax, which shall be added to Contagious' invoice(s) at the appropriate rate.

 

12. Adjusting the Basic Fee

12.1 The Basic Fee shall be adjusted if the performance of the Advisory Services is materially delayed or disrupted due to a change in the scope, size, complexity or duration of the Advisory Services, provided that Contagious will not be entitled to any adjustment of the Basic Fee where delay or disruption arises from its default or negligence.

12.2 Contagious will notify the Customer of its intention to claim an adjustment to the Basic Fee as soon as reasonably practicable after Contagious becomes aware of any material delay or disruption to the Advisory Services. Such notice shall include a written estimate of the proposed adjustment to the Basic Fee.

 

13. Additional Services

13.1 Contagious will notify the Customer as soon as reasonably practicable if it becomes apparent that Additional Services are likely to be required, identifying the required services.

13.2 Contagious will perform any Additional Service on receipt of a written instruction to do so by the Customer.

13.3  As soon as reasonably practicable after receiving an instruction to perform an Additional Service, Contagious will provide the Customer with a written estimate of the cost of the Additional Service and its effect on the Services.

13.4 Unless the parties agree otherwise, the Additional Fee shall be a reasonable amount calculated by reference to Contagious’ time charges (as amended from time to time), provided that no Additional Fee shall be payable if the requirement for an Additional Service arises from Contagious’ default or negligence.

13.5 Any Additional Fee payable by the Customer will be included in the next invoice following performance of the Additional Service to which it relates.

13.6 Time for payment shall be of the essence of the Contract.

13.7 Contagious may, without prejudice to any other rights it may have, set off any liability the Customer has to Contagious against any liability Contagious might have to the Customer.

 

14. Proprietary rights

14.1 The Customer acknowledges and agrees that Contagious and/or its licensors own all intellectual property rights in the Marketing Intelligence and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

14.2 Contagious confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Conditions.

14.3 The Customer grants to Contagious, an irrevocable, non-exclusive, non-terminable, royalty-free licence to use any details of the Services provided to the Customer and the outcome achieved as a result of them for the purposes of its own self-promotion and marketing including but not limited to including details of the Services on its website.

 

15. Confidentiality

15.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.

15.2 Each party may disclose the other party's confidential information:

(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 15; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

 

16. Indemnity

16.1 The Customer shall defend, indemnify and hold harmless Contagious 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 Marketing Intelligence and/or the Documentation, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) Contagious 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.

16.2 Contagious shall defend the Customer, its officers, directors and employees against any claim that the Marketing Intelligence 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 Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) Contagious is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to Contagious in the defence and settlement of such claim, at Contagious' expense; and

(c) Contagious is given sole authority to defend or settle the claim.

16.3 In the defence or settlement of any claim, Contagious may procure the right for the Customer to continue using the Marketing Intelligence, replace or modify the Marketing Intelligence so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

16.4 In no event shall Contagious, 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 Marketing Intelligence or Documentation by anyone other than Contagious; or

(b)  the Customer's use of the Marketing Intelligence or Documentation in a manner contrary to the instructions given to the Customer by Contagious; or

(c) the Customer's use of the Marketing Intelligence or Documentation after notice of the alleged or actual infringement from Contagious or any appropriate authority.

16.5 The foregoing states the Customer's sole and exclusive rights and remedies, and Contagious' (including Contagious' employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

 

17. Limitation of liability

17.1 This clause 17 sets out the entire financial liability of Contagious (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a) arising under or in connection with the Contract;

(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and

(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

17.2  Except as expressly and specifically provided in these Conditions:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer and the Authorised Users, and for conclusions drawn from such use. Contagious shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Contagious by the Customer in connection with the Services, or any actions taken by Contagious 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 the Contract; and

(c) the Services and the Documentation are provided to the Customer on an "as is" basis.

17.3 Nothing in these Conditions excludes the liability of Contagious:

(a) for death or personal injury caused by Contagious' negligence; or

(b) for fraud or fraudulent misrepresentation.

17.4  Subject to clause 17.2 and clause 17.3:

(a) Contagious shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

(b) Contagious' total aggregate liability in contract (including in respect of the indemnity at clause 16.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total fees paid by the Customer during the [12] months immediately preceding the date on which the claim arose.

 

18. Term and termination

18.1 A Contract for Marketing Intelligence shall, unless otherwise terminated as provided in this clause 18, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with these Conditions;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

18.2 Without limiting its other rights and remedies, Contagious may terminate (or in its absolute discretion, suspend) the Contract and/or any User Subscription immediately on notice if the Customer or any Authorised User makes unreasonable use of the Marketing Intelligence in breach of Contagious’ Fair Usage Policy.

18.3 Without limiting its other rights or remedies, either party may terminate the Contract for Advisory Services by giving the other party 30 days’ written notice.  Unless agreed otherwise, Advisory Services terminated on less notice will be subject to payment in full of the Fees set out in the Specification.

18.4 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)  the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)  the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)  the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

18.5 Without limiting its other rights or remedies, Contagious may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment.

18.6 On termination of a Contract for any reason:

(a) all licences granted in relation to the Marketing Intelligence shall immediately terminate;

(b)  the Customer shall make no further use of the Marketing Intelligence or the Documentation;

(c) Contagious may destroy or otherwise dispose of any of the Customer Data in its possession unless Contagious receives, no later than ten days after the effective date of termination, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Contagious 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 Contagious 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 these Conditions which existed at or before the date of termination shall not be affected or prejudiced.

 

19. Force majeure

Contagious shall have no liability to the Customer under these Conditions if it is prevented from or delayed in performing its obligations, 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 Contagious or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

 

20. Variation

Contagious may revise these Conditions at any time and shall notify the Customer in any such event.

 

21. Waiver

No failure or delay by a party to exercise any right or remedy provided under these Conditions 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.

 

22. 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.

 

23. Severance

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

23.2 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.

 

24. Entire agreement

These Conditions and the Specification constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

 

25. Assignment

25.1 The Customer shall not, without the prior written consent of Contagious, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

25.2 Contagious may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

 

26. No partnership or agency

Nothing in these Conditions 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).

 

27. Third party rights

These Conditions do not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

28. Notices

28.1             Any notice required to be given 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 the Order or the Specification, or such other address as may have been notified by that party for such purposes.

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

 

29. Governing law

The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

 

30. Jurisdiction

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).