THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 10 (LIMITATION OF LIABILITY).

 

1. INTERPRETRATION

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

Authorised User: those employees, agents or representatives of the Customer who are authorised by the Customer and permitted hereunder to use the Services

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

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.

 

Commencement Date: the date upon which the Contract between the Customer and the Supplier comes into effect, as set out in clause 3.4 in respect of orders made via the Website and as set out in clause 3.7 in respect of all other orders.

Conditions: these terms and conditions as amended from time to time in accordance with clause 14.5.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Control: shall be as defined in section 1124 of the UK Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer: the person or firm who purchases Services from the Supplier.

Customer Default: has the meaning set out in clause 5.2.

Dashboard: the software application which presents or permits the presentation of market data and, if applicable, its analysis by the Customer.

Data Controller: has the meaning set out in section 1(1) of the UK Data Protection Act 1998.

Data Subject: an individual who is the subject of Personal Data.

Deliverables: the deliverables which the Supplier will provide in supplying the Services, including (but not limited to), for the avoidance of doubt, any Dashboard, report or other document or matter provided by the Supplier to the Customer in the course of its provision of the Services.

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

Order Form: the order form which specifies the Services that the Customer has indicated that it wishes to purchase from the Supplier subject to these Conditions, and which has been signed by the Customer.

Personal Data: has the meaning set out in section 1(1) of the UK Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under the Contract.

Processing and process: have the meaning set out section 1(1) of the UK Data Protection Act 1998.

Services: the services, including the Deliverables and any Subscription, to be supplied by the Supplier to the Customer as further described in the Specification.

Specification: the description or specification of the Services set out in the Order Form.

(i) set out in, or attached to the Order Form; or

(ii) which appears on the Website at the time of you make your order.

Subscription: any subscription for market intelligence reports or in relation to the use of Dashboards supplied by the Supplier or its affiliates.

Subscription Term: the term for any Subscription purchased by the Customer set out in the Order Form or the Order Confirmation (as applicable).

Supplier: WINGX Advance GMBH.

Website: www.wingx-advance.com.

1.2 Interpretation:

(a) 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 all subordinate legislation made under that statute or statutory provision.

(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c) A reference to writing or written includes fax and email.

2. ABOUT THE SUPPLIER

2.1 The Supplier (Wingx Advance GmbH (HRB 108335)) is a company registered in Germany, whose registered office is situated at Kiebitzhof 6, Hamburg, Germany. The Supplier’s main trading address Kiebitzhof 6, Haus G, 22089 Hamburg, Germany.

2.2 To contact the Supplier, please email to the email address given on the Order Form. Details of how to give the Supplier formal notice of a matter under the Contract are set out in clause 14.8.

2.3 The Supplier maintains professional indemnity insurance.

3. BASIS OF CONTRACT

Ordering through the Website

3.1 In order to place an order via the Website, the Customer must follow the onscreen prompts provided. Each order made via the Website is an offer by the Customer to buy the Services, Subscriptions or Deliverables specified in the order, subject to these Conditions.

3.2 The Supplier’s order process set out on the Website allows the Customer to check and amend any errors before submitting its order to the Supplier. The Customer is responsible for ensuring that its order is complete and accurate.

3.3 After the Customer has placed its order on the Website, it will receive an email from the Supplier acknowledging that the Supplier has received it, although this does not signify the Supplier’s acceptance of the Customer’s order. The Supplier’s acceptance of the Customer’s order made via the Website will take place as described in clause 3.4.

3.4 The Supplier’s acceptance of the Customer’s order made via the Website takes place when the Supplier send an email to the Customer confirming its acceptance of the Customer’s order (Order Confirmation), at which point and on which date the Contract between the Customer and the Supplier will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.

3.5 If the Supplier is unable to supply the Customer with the Services it has offered to purchase for any reason, the Supplier will inform the Customer of this by email and the Supplier will not process the Customer’s order. If the Customer has already paid for the Services it has offered to purchase, the Supplier will refund to the Customer the full amount paid.

 

Orders made using the Order Form

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

3.7 The Order Form shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence.

3.8 Any descriptive matter or advertising issued by the Supplier are issued or 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.

3.9 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.

3.10 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.

4. SUPPLY OF SERVICES

4.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

4.2 The Supplier shall use all reasonable endeavours to meet any performance dates or delivery dates specified either in the Order Form or set out on the Website, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.3 The Supplier reserves the right to amend the Specification at any time after Order Confirmation if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

4.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

 

5. CUSTOMER’S OBLIGATIONS

5.1 The Customer shall:

(a) ensure that the terms of the Order Form, any information it gives thereon or during the order process set out on the Website and any information it provides in the Specification are complete and accurate;

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

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

(d) obtain and maintain all necessary licences, permissions and consents which may be required for its receipt and / or use of the Services before the date on which the Services are to start;

(e) comply with all applicable laws and regulations with respect to its activities under or in relation to the Contract;

(f) ensure that each Authorised User of any Deliverable (including any Dashboard) uses the same in accordance with these Terms, and shall be responsible for any losses, liabilities, costs or expenses incurred by the Supplier as a result of any Authorised User’s use of any Deliverable not in accordance with these Terms and /or applicable law; and

(g) comply with any additional obligations as set out in the Specification.

5.2 If the Supplier’s 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) without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

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

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

6. CHARGES AND PAYMENTS

6.1 The Charges payable by the Customer in connection with the Supplier’s provision of the Services purchased by the Supplier shall be:

(a) in respect of orders made via the Website, those that appear on the website at the time you submit your order; and

(b) in respect of all other orders, those set out in the Order Form.

6.2 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with its provision of the Services.

6.3 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the UK Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

6.4 The Customer shall be obliged to pay the Charges applicable to the Supplier’s provision of the Services purchased by the Customer in advance. The Supplier shall invoice the Customer on the Commencement Date and at such intervals as may be specified in the Order form, in respect of the Charges payable by the Customer in respect of the next calendar quarter.

6.5 The Customer shall pay each invoice submitted by the Supplier:

(a) within 20 days of the date of the invoice; and

(b) in full and in cleared funds to the bank account last nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

6.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

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

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

7.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, non-exclusive, royalty-free limited, revocable (subject to the terms hereof) licence during the term of the Contract to use the Dashboards and use or copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services, the Subscription and the Deliverables for its own internal business purposes.

7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.

7.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

8. SUBSCRIPTIONS

This clause shall only be applicable if the Customer has purchased a Subscription.

8.1 The Supplier hereby grants to the Customer a non-exclusive, non-transferable, limited right to permit Authorised Users in a maximum number not exceeding the amount agreed by the Supplier in the Order Form or the Order Confirmation (as applicable) to use the Services or Deliverables in respect of which the Customer has purchased a Subscription (the Subscribed Services) solely for the Customer’s internal business purposes during the Subscription Term.

8.2 The Customer shall:

 

(a) not use or access, or permit any third party which is not an Authorised User to use or access a Subscribed Service or any data which appears thereon (or which can be derived therefrom) for any purpose other than that which is set out herein or which has been expressly agreed in writing by the Supplier;

(b) keep access to each Subscribed Service secure and shall take all reasonable measures to ensure that only Authorised Users are able to access the Subscribed Services; and

(c) not attempt or permit a third party to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of a Dashboard accessed or used by it or a third party pursuant to a Subscription.

8.3 If the Supplier does not receive payment of any sum payable by the Customer when due under any Contract, without prejudice to any other right or remedy it may have, the Supplier may without liability to the Customer, disable the Customer’s access to any Subscribed Service and / or suspend the provision of any other Service it has otherwise agreed to provide. In such circumstances, the Supplier shall be under no obligation to enable the Customer’s access to any Subscribed Service or provide any other Service hereunder until the Customer has paid payment in full of all sums which are or have become overdue for payment.

 

9. DATA PROTECTION AND DATA PROCESSING

9.1 The Customer and the Supplier acknowledge that for the purposes of the UK Data Protection Act 1998, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.

9.2 The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.

9.3 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

9.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

9.5 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.

9.6 The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:

(a) is on terms which are substantially the same as those set out in the Contract; and

(b) terminates automatically on termination of the Contract for any reason.

10. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

 

10.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

 

(c) breach of the terms implied by section 2 of the UK Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

10.2 Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; or

(g) any indirect or consequential loss.

10.3 Subject to clause 10.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to sum of the total Charges paid under the Contract.

10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.5 This clause 10 shall survive termination of the Contract.

11. INDEMNITY

11.1 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made by a third party against the Supplier as a result of or in connection with the Customer’s breach of the Contract.

 

12. TERMINATION

12.1 Unless terminated earlier in accordance with clause 12.2 (Termination) or this clause, the Contract shall continue for the period specified in the Order Form (Initial Term) and shall automatically extend for a further period of the same duration as the Initial Term (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party OR parties not later than 60 Business Days before the end of the Initial Term or the relevant Extended Term, to terminate this Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.

12.2 Without affecting any other right or remedy available to it, 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 30 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.

12.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or

(b) there is a change of control of the Customer.

12.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract, the Customer’s rights under or in respect of the Subscription or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

 

13. CONSEQUENCES OF TERMINATION

13.1 On termination of the Contract:

(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return any materials, documents or other items provided to it by the Supplier and not purchased by the Customer hereunder and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract; and

(c) all the Customer’s rights in respect of its receipt of the Services, the Customer’s rights under or in respect of any Subscription and / or any right to use any Deliverable licensed to the Customer pursuant to the Contract shall immediately terminate.

13.2 The termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination [or expiry] of the Contract shall remain in full force and effect.

14. GENERAL

14.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

14.2 Assignment and other dealings.

(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

14.3 Confidentiality.

(a) Each party undertakes that it shall not at any time during the Contract, and for a period of three 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 14.3(b).

(b) Each party may disclose the other party’s confidential information:

(i) 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 14.3; and

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

(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

14.4 Entire agreement.

(a) The Contract 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.

(b) Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

(c) Nothing in this clause shall limit or exclude any liability for fraud.

14.5 Variation.

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.6 Waiver.

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.7 Severance.

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

14.8 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Order Form.

(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax [or email], at 9.00 am on the next Business Day after transmission.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

14.9 Third party rights.

(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

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

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