Terms & Conditions

Last Updated: 25th May 2018


10NINETY SUBSCRIPTION AGREEMENT

PLEASE READ THIS SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT CAREFULLY BEFORE USING THE 10NINETY SERVICES. BY CLICKING THE BUTTON TO ACCEPT OUR TERMS AND CONDITIONS OR SIMPLY BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ARE DEEMED TO HAVE AGREED TO THEM ON BEHALF OF ANY ENTITY FOR WHOM YOU USE THE SERVICES. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, OR IF YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, THEN YOU ARE NOT AUTHORISED TO USE THE 10NINETY SERVICES.

This software as a service subscription agreement (Agreement) governs your use of the Services (defined below) provided by 10ninety Limited (company registered no. 6667496) of Fairfax House, Causton Road, Colchester, Essex CO1 1RJ (10ninety, us or we). You, recipient of the Services, are referred to as "Customer" or "you" in this Agreement.

BACKGROUND

10ninety has developed a software platform which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of sales, lettings management and marketing, which the Customer wishes to use in its business operations. 10ninety has agreed to provide and the Customer has agreed to take and pay for 10ninety's service subject to the terms and conditions of this Agreement.

AGREED TERMS

1.

The definitions above and below, and rules of interpretation in this clause apply in this Agreement.

Aggregated Data means Customer Data and usage information that has been stripped of all Personal Information and aggregated with other customer data so that no Personal Information or Confidential Information relating to the Customer shall be identifiable.

Authorised Users means those employees, agents and independent contractors of the Customer, each of whom are authorised by the Customer to use the Services and the Service Information, as further described in clause 2.2.

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

Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.

Consumer Prices Index means the Consumer Prices Index as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree most closely resembles such index.

Customer Data means the data inputted by the Customer, Authorised Users, or 10ninety on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Data Protection Laws means:

(a) the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR;
(b) any laws which implement any such laws; and
(c) any laws that replace, extend, re-enact, consolidate or amend any of them.

Data Subject, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in GDPR;

Documentation Resources means the documentation available for production within the Services including template tenancy agreements, forms or letters.

Effective Date means the date this Agreement is electronically accepted, the date of last signature of the parties if signed in hard copy or otherwise the date the Customer starts using the Services.

Fees means any fees payable by the Customer to 10ninety under this Agreement including the Subscription Fees and Website Fees.

GDPR means the General Data Protection Regulation (EU) 2016/679;

Initial Subscription Term means one month from the Effective Date

Normal Business Hours means 9.00 am to 5.30 pm local UK time, each Business Day.

Personal Information means personal data as defined by applicable Data Protection Laws and which you make available to us in the course of our providing the Services.

Renewal Period means the period described in clause 14.1.

Service Information means the online information made available to the Customer by 10ninety via https://www.10ninety.co.uk/ from time to time, which sets out a description of the Services and the user instructions for the Services or, in the case of website development, maintenance and hosting services, the relevant Statement of Work.

Services means the subscription services for the Software provided by 10ninety to the Customer under this Agreement as well as the website development, maintenance and hosting services as may be agreed from time to time.

Software means the estate agency software application known as ‘10ninety’ provided by 10ninety as part of the Services, including any updates relating thereto that may be provided hereunder and any derivative works of the foregoing.

Statement of Work means the written agreement between the parties setting out the details of any website development, maintenance and hosting services to be provided by 10ninety.

Subscription Fees means the subscription fees payable by the Customer to 10ninety for the Unit Subscriptions as set out at https://www.10ninety.co.uk/pricing/.

Subscription Term has the meaning given in clause 14.1.

Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by 10ninety for carrying out any processing activities on behalf of the Customer in respect of Personal Information.

Support Services means 10ninety’s provision of support for the Customer in relation to its use of the Services which shall be provided in accordance with clause 4.3.

Unit mean a property under sale, letting or management or otherwise controlled by a Customer.

Unit Subscriptions the subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Service Information in respect of the Units 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.

Website Fees means any fees payable by the Customer to 10ninety for any agreed website development, maintenance and hosting services, as set out at https://www.10ninety.co.uk/pricing/ or otherwise agreed in writing between the parties.

Clause and paragraph headings shall not affect the interpretation of this Agreement. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time-to-time, whether before or after the date of this Agreement. References to clauses are to the clauses of this Agreement. The words and phrases “includes”, “including” or “in particular” (as well as any similar words or expressions), except where already stated, shall be deemed to be immediately followed by the words “without limitation”.

2.
Subscriptions
2.1
Subject to the Customer purchasing the Unit Subscriptions in accordance with clause 3.2 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, 10ninety hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Service Information during the Subscription Term solely for the Customer's internal business operations.
2.2
In relation to the Authorised Users, the Customer undertakes that:
2.2.1
the maximum number of Units that can benefit from the Services and the Service Information shall not exceed the number of Unit Subscriptions;
2.2.2
it is responsible for the security and proper use of all passwords (including frequently changing passwords) and shall take all necessary steps to ensure that passwords are kept confidential by each Authorised User and are only used for their use of the Services. The Customer shall immediately notify 10ninety of any unauthorised use of Authorised Users’ passwords or any other breach of security;
2.2.3
it shall take all actions we reasonably deem necessary to maintain or enhance the security of our computing systems and networks and your access to the Services.
2.2.4
it shall permit 10ninety to audit the Customer’s use of the Services to verify the Customer’s compliance with this Agreement.
2.3
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property. The Customer shall not use the Services in connection with sending any spam or unwanted communications. 10ninety reserves the right, without liability or prejudice to its other rights, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4
The Customer shall not:
2.4.1
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: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Service Information (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
2.4.2
undermine the security or integrity of, or attempt to gain unauthorised access to, 10ninety’s computing systems or networks or, where Software is hosted by a third party, that third party’s computing systems or networks;
2.4.3
use, or misuse, the Services in any way which may impair the functionality of the Software;
2.4.4
access any or all parts of the Services and Service Information for any use other than as authorised under clause 2.1;
2.4.5
subject to clause 22, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Service Information available to any third party except the Authorised Users, or
2.4.6
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Service Information, other than as provided under this clause 2.
2.5
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Service Information and, in the event of any such unauthorised access or use, promptly notify 10ninety.
2.6
The Customer agrees that if it has elected to use any additional services provided by a third party from within the Services, then such additional services may be subject to applicable third party terms set out at those third party websites which are linked to from our partners page https://www.10ninety.co.uk/partners/, which the Customer is deemed to have agreed to by using the relevant additional services.
2.7
If Customer enables third-party applications for use in conjunction with the Services, you acknowledge that we may allow the providers of those third-party applications to access the Customer Data as required for the interoperation of such third party applications with the Software. We are not responsible for any disclosure, modification or deletion of the Customer Data from any such access by third-party application providers.
3.
Additional Unit subscriptions
3.1
Subject to clause 3.2, the Customer may, from time to time during any Subscription Term, increase its number of Unit Subscriptions and the additional Authorised Users shall be given access to the Services and the Service Information in accordance with the provisions of this Agreement.
3.2
If such additional Unit Subscriptions are required by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), the additional fees shall be applicable from the beginning of the following Renewal Period.
4.
Services
4.1
10ninety shall, during the Subscription Term, provide the Services and make available the Service Information to the Customer on and subject to the terms and conditions of this Agreement.
4.2
10ninety shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week. Availability does not include (i) Customer-caused or third party-caused outages or disruptions, (ii) planned maintenance performed outside Normal Business Hours, or (iii) unscheduled emergency maintenance performed within or outside Normal Business Hours provided that, if occurring within Normal Business Hours, 10ninety has used reasonable endeavours to provide Customer with advance notice where possible.
4.3
10ninety will, as part of the Services, provide the Customer with the Support Services during Normal Business Hours and on an a commercially reasonable endeavours basis (via https://www.10ninety.co.uk/support/).
4.4
In consideration for payment of the Website Fees and subject to clause 4.5, 10ninety will provide website development, maintenance and hosting services as agreed in the relevant Statement of Work.
4.5
10ninety shall host the Customer’s website at no additional charge provided any Website Fees have been paid in full and for as long as the Customer pays the Subscription Fees. Upon the Customer ceasing to pay Subscription Fees, the website shall be taken down by 10ninety unless otherwise agreed between the parties.
4.6
The Customer agrees that “Powered by 10ninety” or similar language shall be maintained in the footer of any website provided by 10ninety.
5.
Customer data
5.1
As between 10ninety and Customer, 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.
5.2
The Customer shall have sole responsibility to maintain copies of all Customer Data that it inputs into the Software application. Although 10ninety will follow our policies and procedures to prevent data loss, we do not make any guarantees that there will be no loss of Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for 10ninety to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by 10ninety in accordance with its archiving procedure. 10ninety shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
5.3
10ninety shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data available at https://www.10ninety.co.uk/privacy-policy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by 10ninety in its sole discretion.
5.4
If 10ninety processes any Personal Information on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and 10ninety shall be a data processor and in any such case and agree that:
5.4.1
the subject matter, duration, nature and purpose of the processing, the type of personal data and categories of data subject are set out in the information about our Services provided to you on our website;
5.4.2
the Customer shall ensure all instructions given by it to 10ninety in respect of Personal Information shall at all times be in accordance with Data Protection Laws;
5.4.3
the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Information to 10ninety so that 10ninety may lawfully use, process and transfer the Personal Information in accordance with this Agreement on the Customer's behalf;
5.4.4
the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
5.4.5
10ninety shall process Personal Information in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement;
5.4.6
10ninety shall process the Personal Information only in accordance with the terms and conditions of this Agreement and any lawful instructions reasonably given by the Customer from time to time except where otherwise required by applicable law (and 10ninety shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on grounds of public interest);
5.4.7
if 10ninety believes that any instruction received by it from the Customer is likely to infringe Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing;
5.4.8
each party shall implement appropriate technical and organisational measures in order that it complies with Article 32 GDPR (Security of processing);
5.4.9
10ninety shall notify the Customer promptly of any accidental loss, destruction, damage or disclosure in relation to Personal Information processed on behalf of the Customer;
5.4.10
10ninety will ensure that its staff authorised to process Personal Information are subject to an enforceable obligation of confidence with regard to the Personal Information;
5.4.11
the Customer generally authorise 10ninety to engage other Sub-Processors to process Personal Information; a list of the Sub-Processors whom we have engaged to date is available at https://www.10ninety.co.uk/sub-processors/; we will notify you of any change and you may object to that but we will be entitled to cease to provide the relevant Services until you and we have agreed on that appointment or a reasonable alternative and:
(a)
prior to that Sub-Processor carrying out any processing activities in respect of Personal Information, we will appoint that Sub-Processor under a written contract containing materially the same obligations as under this clause 5.4 which is enforceable by 10ninety and ensure each such Sub-Processor complies with all such obligations;
(b)
we will remain fully liable to you under this Agreement for all the acts and omissions of each Sub-Processor appointed by us as if they were ours; and
(c)
ensure that all persons authorised by 10ninety or any Sub-Processor appointed by us to process Personal Information are subject to a binding written contractual obligation to keep Personal Information confidential.
5.4.12
10ninety shall (at the Customer's cost):
(a)
assist the Customer in ensuring compliance with the Customer's obligations pursuant to Articles 32 to 36 of GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to 10ninety; and
(b)
taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising Data Subjects’ rights under Chapter III of GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Personal Information.
5.4.13
10ninety may transfer Personal Information outside of the European Economic Area (EEA) where it is permitted to do so under Articles 44 to 49 of GDPR.
5.4.14
10ninety shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate 10ninety's compliance with the obligations placed on it under this clause 5.4 and to demonstrate compliance with the obligations on each party imposed by Article 28 of GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 5.4).
5.4.15
on the end of the provision of the Services relating to the processing of Personal Information, at the Customer’s cost and the Customer’s option, 10ninety shall either return all of the Personal Information to the Customer or securely dispose of the Personal Information (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires 10ninety to store such Personal Information. This clause 5.4.14 shall survive termination or expiry of this Agreement.
5.5
10ninety will not sell, distribute or in any way transfer the Customer Data to any third party, except to the extent required to provide the Services or as permitted in connection with clauses 5.6 and 5.7, without the prior written consent of the Customer or as otherwise required by applicable law.
5.6
10ninety may, during the Subscription Term, use Customer Data internally to provide and improve the Services and to create the Aggregated Data.
5.7
The Customer agrees that ownership of all Aggregated Data shall belong absolutely to 10ninety automatically from creation. For the avoidance of doubt, 10ninety shall be entitled to use and deal with Aggregated Data in any way that it may in its absolute discretion decide.
6.
Third party providers and Documentation Resources
6.1
The Customer acknowledges that through use of the Services it may be able to access the content of, correspond with, and purchase products and services from third parties and that it does so solely at its own risk. 10ninety makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to any such third party product or services. Any contract entered into and any transaction completed with a third party via the Services is between the Customer and the relevant third party, and not 10ninety. 10ninety recommends that the Customer refers to the terms and conditions applied by the relevant third parties prior to using the relevant third party products and services. 10ninety does not endorse or approve any third party product or service made available via the Services.
6.2
Any Documentation Resources are provided as examples that the Customer uses at its own risk. Such Documentation Resources may contain inaccuracies and/or become out of date. The Customer should seek legal advice from a qualified lawyer before relying on any Documentation Resources.
6.3
The Customer shall assume full responsibility for ensuring that any automated completion or pre-population of Documentation Resources that takes place as part of the Services does not produce erroneous or inaccurate results. 10ninety shall accept no liability for any loss that the Customer may suffer in the event that any automatically completed or pre-populated Documentation Resources contain mistakes of any kind whatsoever.
7.
10ninety's obligations
7.1
10ninety undertakes that the Services will be performed substantially in accordance with the Service Information and with reasonable skill and care.
7.2
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 10ninety's instructions, or modification or alteration of the Services by any party other than 10ninety or 10ninety's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, 10ninety will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, 10ninety:
7.2.1
does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Service Information and/or the information obtained by the Customer through the Services will meet the Customer's requirements;
7.2.2
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 Customer acknowledges that the Services and Service Information may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
7.2.3
is not able to ensure that it will deliver its Services within any agreed deadlines or timescales and any such deadlines or timescales are agreed to by 10ninety only on a reasonable endeavours basis. The Customer agrees that time shall not be of the essence in relation to the provision of the Services.
8.
Customer's obligations
8.1
The Customer shall:
8.1.1
provide 10ninety with all necessary co-operation in relation to this Agreement, and all necessary access to such information as may be required by 10ninety in order to provide the Services;
8.1.2
comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3
carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, 10ninety may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4
ensure that the Authorised Users use the Services and the Service Information in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
8.1.5
obtain and shall maintain all necessary licences, consents, and permissions necessary in relation to the Customer Data or other information that Customer is responsible for under this Agreement in order for 10ninety, its contractors and agents to perform their obligations under this Agreement, including the Services;
8.1.6
ensure that its network and systems comply with the relevant specifications provided by 10ninety from time to time;
8.1.7
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to 10ninety's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
8.1.8
be solely responsible for ensuring that any Customer Data that may cause a breach of clauses 2.3 and/or 8.1.5 is promptly removed and the Customer agrees that 10ninety shall have no responsibility for monitoring the Customer Data or identifying any content that may be in breach of this Agreement.
9.
Charges and payment
9.1
The Customer shall pay the Fees to 10ninety in accordance with this clause 9. The Customer shall pay the Subscription Fees monthly in advance of using the Services, subject to and on the due date of each invoice. The Customer shall pay the Website Fees by way of instalments as stipulated in writing by 10ninety and in each case on the due date of each invoice. All other Fees shall also be paid on the due date of the relevant invoice.
9.2
The Customer shall on or before the Effective Date provide to 10ninety or its chosen payment provider valid, up-to-date and complete credit card/debit card details, any other relevant valid, up-to-date and complete contact and billing details requested by 10ninety, or set up a standing order and, if the Customer provides:
9.2.1
its credit card or debit card details to 10ninety (or its chosen payment provider), the Customer hereby authorises 10ninety to bill such credit or debit card: (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; (ii) subject to clause 14.1, on or before the beginning of each Renewal Period for the Subscription Fees payable in respect of that period; and (iii) upon the agreed payment dates falling due, for any applicable Website Fees or other amounts agreed between the parties;
9.2.2
contact and billing details requested by 10ninety, 10ninety shall invoice the Customer: (i) on or before the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to clause 14.1, on or before the beginning of each Renewal Period for the Subscription Fees payable in respect of that period; and (iii) on or before the agreed payment dates falling due, for any applicable Website Fees or other amounts agreed between the parties;
9.2.3
confirmation that it has set up a valid standing order, 10ninety shall invoice the Customer: (i) on or before the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; (ii) subject to clause 14.1, on or before the beginning of each Renewal Period for the Subscription Fees payable in respect of that period; and (iii) on or before the agreed payment dates falling due, for any applicable Website Fees or other amounts agreed between the parties.
9.3
If 10ninety has not received payment within one month after the due date, and without prejudice to any other rights and remedies of 10ninety:
9.3.1
10ninety may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and 10ninety shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2
interest shall accrue on a daily basis on such due amounts at the annual rate equal to 3% over the then current base lending rate of the Bank of England, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4
All amounts and fees stated or referred to in this Agreement shall be payable in pounds sterling; are non-cancellable and non-refundable; and are exclusive of value added tax, which shall be added to 10ninety's invoice(s) at the appropriate rate.
9.5
10ninety shall be entitled to increase its fee rates no more than once in any rolling 12 month period (starting on the Effective Date) upon one month’s written notice to the Customer and 10ninety’s then stated prices shall be deemed to have been amended accordingly. Any increase in the fee rates shall be calculated on an annual basis in line with the percentage increase in the Consumer Prices Index in the preceding 12 month period. For the avoidance of doubt this clause shall be without prejudice to 10ninety’s rights under clause 3.2.
9.6
Without prejudice to clause 9.5, 10ninety shall be entitled to increase fee rates less frequently than once in any rolling 12 month period, by the amount permitted in a rolling 12 month period by operation of clause 9.5, compounded over the period when no increase has otherwise been applied.
10.
Proprietary rights
10.1
The Customer acknowledges and agrees that 10ninety and/or its licensors own all intellectual property rights in the Software, Services and the Service Information, including all derivatives or improvements thereof, whether created before or after the Effective Date. Any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any Authorised Users relating to the Software, Services and/or Service Information shall be owned exclusively by 10ninety, and you hereby make all assignments necessary to accomplish the foregoing. Except as expressly stated herein, this Agreement does not grant the Customer 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 Software, Services or the Service Information.
10.2
10ninety confirms that it has all the rights in relation to the Software, Services and the Service Information that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms and conditions of this Agreement.
11.
Confidentiality
11.1
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: is or becomes publicly known other than through any act or omission of the receiving party; was in the other party's lawful possession before the disclosure; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or is independently developed by the receiving party (which independent development can be shown by written evidence).
11.2
Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
11.3
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 and conditions of this Agreement.
11.4
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.
11.5
10ninety acknowledges that the Customer Data is the Confidential Information of the Customer.
11.6
10ninety may identify you as a recipient of Services and use your logo in sales presentations and marketing materials.
11.7
The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
12.
Indemnity
12.1
The Customer shall defend, indemnify and hold harmless 10ninety against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Service Information, provided that: the Customer is given prompt notice of any such claim; 10ninety provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and the Customer is given sole authority to defend or settle the claim.
12.2
10ninety shall defend the Customer, its officers, directors and employees against any claim that the Software (excluding any third party software therein) infringes any United Kingdom patent, copyright, trade mark, database right or right of confidentiality effective as of the Effective Date, and subject to clause 13.3.2 shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: 10ninety is given prompt notice of any such claim; the Customer provides reasonable co-operation to 10ninety in the defence and settlement of such claim (at 10ninety's reasonable expense); and 10ninety is given sole authority to defend or settle the claim.
12.3
In the defence or settlement of any claim under clause 12.2, 10ninety may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer other than a pro-rata refund of the Subscription Fees equal to the proportion of time remaining in the then-current Subscription Term.
12.4
In no event shall 10ninety, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: a modification of the Services or Service Information by anyone other than 10ninety, or the Customer's use of the Services or Service Information in a manner contrary to the instructions given to the Customer by 10ninety, or the Customer's use of the Services or Service Information after notice of the alleged or actual infringement from 10ninety or any authority.
12.5
The foregoing and clause 13.3.2 state the Customer's sole and exclusive rights and remedies, and 10ninety's (including 10ninety's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13.
Limitation of liability
13.1
Except as expressly and specifically provided in this Agreement:
13.1.1
the Customer assumes sole responsibility for results (including any financial information) obtained from the use of the Services and the Service Information by the Customer, and for conclusions drawn from such use, and the Customer acknowledges that any forms, contract or agreement templates or related documents (‘Forms’) provided as part of the Services are for guidance only, should be used only with adequate prior knowledge of landlord and tenant law, and shall not be deemed to constitute legal advice or be relied on as such. 10ninety shall have no liability for any damage or loss whatsoever caused by any use by the Customer of any Forms, errors or omissions in any information (including contract or agreement templates), instructions or scripts provided to 10ninety by the Customer in connection with the Services, or any actions taken by 10ninety at the Customer's direction. The Customer shall be solely responsible for management and oversight of any information received and/or transmitted using, or following use of the Software and 10ninety shall have no responsibility for managing, monitoring, overseeing and/or cancelling any such communications or information transmitted to or from the Customer using, or arising following use of, the Software; and
13.1.2
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.
13.2
Nothing in this Agreement excludes the liability of 10ninety for death or personal injury caused by 10ninety's negligence, or for fraud or fraudulent misrepresentation.
13.3
Without prejudice to clause 13.1 and clause 13.2:
13.3.1
10ninety 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 or in connection with this Agreement; and
13.3.2
10ninety's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim arose.
14.
Term and termination
14.1
This Agreement shall commence on the Effective Date and shall, unless otherwise terminated as provided in this clause 14, continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of one month (each a Renewal Period), unless:
14.1.1
either party notifies the other party of termination, in writing, with at least one month’s notice (such termination by the Customer not to take effect until after the first Renewal Period); or
14.1.2
otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2
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:
14.2.1
the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than one month after being notified in writing to make such payment;
14.2.2
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 one month after being notified in writing to do so;
14.2.3
the other party is the subject of a bankruptcy order (or the equivalent in any other jurisdiction), becomes insolvent or makes any arrangement or composition with, or an assignment for the benefit of, its creditors, or if any of its assets are the subject of any form of seizure, or it goes into liquidation (either voluntary or compulsory) or if a receiver or administrative receiver or administrator is appointed in respect of its affairs; or
14.2.4
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3
On termination of this Agreement for any reason:
14.3.1
all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Software, Services and/or the Service Information;
14.3.2
each party shall return and make no further use of any equipment, property, Service Information and other items (and all copies of them) belonging to the other party;
14.3.3
10ninety may destroy or otherwise dispose of any of the Customer Data in its possession on expiry of 7 days following termination, however, prior to termination the Customer may request in writing that 10ninety deliver to the Customer the raw data extracts from the Services database. The Customer may also extract Customer Data from the Services prior to termination via the system user interface itself, into Excel; and
14.3.4
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.
15.
Force majeure. 10ninety shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of 10ninety 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.
16.
Conflict. If there is an inconsistency between any of the provisions in this Agreement and the Service Information, the provisions in this Agreement shall prevail.
17.
Variation. No variation of this Agreement shall be effective unless it is in writing (including by email), except that 10ninety may vary these terms, the Fees (subject to one month’s written notice) and the Services at its sole discretion by publishing revised terms on its website and giving notice of the same to the Customer by email. Continued use of the Services following such notice shall be deemed acceptance by the Customer of the revised terms.
18.
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.
19.
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.
20.
Severance. 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. 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.
21.
Entire agreement. This Agreement, including the Service , 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.
21.1
No reliance. 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.
22.
Assignment. The Customer shall not, without the prior written consent of 10ninety, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. 10ninety 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.
23.
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).
24.
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.
25.
Notices. If you wish to contact us in writing, or if any condition in the Agreement requires you to give us notice in writing, then you can send this to us by e-mail at support@10ninety.co.uk or by pre-paid post to the address set out in the first paragraph of this Agreement. If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provided to us during registration or in any purchase order. Any notice given by you to us, or by us to you, will be deemed received 24 hours after an email is sent (so long as the email transmission was successful) and a notice sent by pre-paid registered post or courier will be deemed to have been received at the time of delivery.
26.
Governing law. 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.
27.
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).
 

This Agreement has been entered into on the Effective Date.