Conditions d'utilisation et politique de confidentialité

Service Terms & Conditions

1. Definitions

1.1 Except to the extent expressly provided otherwise, in the Agreement:
"Acceptable Use Policy" means the document which describes prohibited uses of the Hosted Services offered by the Provider. The document is available to read at: www.archdesk.com/acceptable-use-policy/ "Account" means an account enabling a person to access and use the Hosted Services including both administrator accounts and user accounts. Accounts are divided into three types with different access to the Platform and its functionalities:

• (a) "Office Users", meaning Accounts that can access the Platform and all its functionalities using both Archdesk ERP Web App accessible through an internet browser and Archdesk ERP Mobile App;
• (b) "Field Users", meaning Accounts that can access the Platform using Archdesk ERP Mobile App and all functionalities available through the newest version of Archdesk ERP Mobile App;
• (c) "Timesheet Users", meaning Accounts that can access timesheet records functionality using a timesheet's link and digital token;

"Admin panel" means the interface in the Hosted Services, where administrators chosen by the client and other site officials with appropriate privileges can manipulate the Hosted Services settings, set user access to individual parts of the system, accept or decline to add new users to Hosted Services, and more;

"Agreement" means Archdesk™ ERP SaaS Agreement signed between the Provider, and the Customer, including any Schedules, and any amendments to the Agreement;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means 09:00 to 17:00 GMT/BST on a Business Day;

"Charges" means the following amounts:

• (a) the amounts specified in Part 2 of Schedule 1 (Hosted Services particulars);

"Customer" Customer means the person or company identified as the customer in the specific Agreement and referred to as “Customer” in these Terms and Conditions;

"Customer Confidential Information" means:

• (a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

• (i) was marked or described as "confidential"; or
• (ii) should have been reasonably understood by the Provider to be confidential.

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Downtime" means the period during which Hosted Services are not functional or cannot work. It may be due to Hosted Services Defect, Hosted Services Upgrade, Maintenance Services, Force Majeure Event, or non-availability of resources as necessary for correct Hosted Services operation.

"Effective Date" means the date of execution of the Agreement, which is understood as the date in which Customer signed the Agreement;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means Archdesk ERP which will be made available by the Provider to the Customer as a service via the internet in accordance with the Agreement;

"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising from:

• (a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
• (b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
• (c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
• (d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification.

"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in the specific Archdesk™ ERP SaaS Agreement;

"Implementation Process" means a defined procedure done by the Provider in cooperation with the Customer to configure the Hosted Services to meet the Customer's business needs. The Implementation Process starts with a kick-off call, and its term may vary based on the Customer's needs and requirements, and setup complexity. The end of the Implementation Process is determined by the Customer's and Provider's representatives mutually. After the end of The Implementation Processes, the Customer can contact the Provider with requests related to Hosted Services only through Archdesk Customer Support, as Support Services;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);

"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

"Permitted Purpose" means storing and processing business data;

"Personal Data" has the meaning given to it in the General Data Protection Regulation (2016);

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

“Provider” means EMS Operations (UK) Ltd, a company incorporated in England and Wales (registration number 10408653) having its registered office at 105, Dock 2, 85 Exploration Drive, LE4 5NU, Leicester, United Kingdom, trading as Archdesk, providing Hosted Services to the Customer;

"Schedule" means any schedule attached to the main body of the Agreement;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under the Agreement;

"Support Services" means support to the use of, and the identification and resolution of errors in, the Hosted Services; the Client may request the Support Services via sending the message at [email protected];

"Supported Web Browser" means the currently released version of Google Chrome;

"Term" means the term of the specific Archdesk ™ ERP SaaS Agreement, stated in the Agreement;

"Update" means a hotfix, patch or minor version update to any Platform software; and

"Upgrade" means a major version upgrade of any Platform software.

2. Terms of Agreement

• 2.1 Each Agreement shall commence on the Effective Date and shall continue for a period specified in each Agreement unless terminated in accordance with the provisions of clause 17.
• 2.2 Unless one of the Parties declares the will to terminate the Agreement in the term of 30 days before the Agreement expiration date, the Agreement is automatically extended for a period of the next 12 calendar months. Extended Agreement Term includes all termination clauses described in the Agreement.

3. Hosted Services

• 3.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account no later than two weeks after the start of the Implementation Process, provided that all the necessary information to create an Account has been given to the Provider.
• 3.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer following the Documentation during the Term.
• 3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

• • (a) The Hosted Services may only be used by the named users identified in the admin panel providing that the Customer may change, add or remove a designated users.

• 3.4 The maximum number of users that can be added to the Hosted Services is defined in each Agreement for each particular Customer.
• 3.5 The Customer may increase the maximum number of users by requesting to add additional users without changing the Platform Resources Package. This type of request results in changing the Charges in accordance with fees specified in the Agreement.
• 3.6 Except to the extent expressly permitted in the Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:

• • (a) the Customer must not permit any unauthorised person to access or use the Hosted Services;
  • (b) the Customer must not make any alteration to the Platform.

• 3.7 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
• 3.8 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
• 3.9 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:

• • (a) a Force Majeure Event;
  • (b) a fault or failure of the internet or any public telecommunications network;
  • (c) a fault or failure of the Customer's computer systems or networks;
  • (d) any breach by the Customer of the Agreement; or
  • (e) scheduled maintenance carried out following the Agreement.

• 3.10 The Customer must comply with the Acceptable Use Policy and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with the Acceptable Use Policy.
• 3.11 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
• 3.12 The Customer must not use the Hosted Services:

• • (a) in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

• 3.13 For the avoidance of doubt, the Customer is forbidden from accessing the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
• 3.14 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 15 days' written notice following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

4. Maintenance Services

• 4.1 The Provider shall provide Maintenance Services to the Customer during the Term.
• 4.2 The Provider shall where practicable, give to the Customer at least 1 Business Day's prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this main body of the Agreement. Maintenance Services shall be always carried out outside Business Hours, excluding emergency Maintenance Services, which shall be carried out anytime to stop an emergency.
• 4.3 The Provider does not need to give to the Customer prior notice of the application of an Upgrade to the Platform.
• 4.4 The Provider does not need to give to the Customer notice of the application of any security Update to the Platform and no notice of the application of any non-security Update to the Platform.
• 4.5 The Provider shall provide Maintenance Services with reasonable skill and care.
• 4.6 The Provider may suspend the provision of Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 15 days' written notice following the amount becoming overdue, of its intention to suspend Maintenance Services on this basis.

5. Support services

• 5.1 The Provider shall provide Support Services to the Customer during the Term.
• 5.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of the main body of this Agreement.
• 5.3 The Provider shall provide Support Services with reasonable skill and care.
• 5.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
• 5.5 Support Services are available to all customers through a dedicated ticketing system. The Archdesk Customer Support Team operates from Monday to Friday from 9:00 AM to 5:00 PM (GMT/BST). All tickets will be replied to on a first-come, first-served basis, in no more than 2 business days.
• 5.6 The Provider may suspend the provision of Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 15 days' written notice following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

6. Customer Data

• 6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. For avoidance of doubt, an example would be a quote sent to a customer through the Archdesk system which in this scenario would be considered publishing data. For a further example, reproducing and storing data would occur at the infrastructure level when daily backups are performed.
• 6.2 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.
• 6.3 The Customer hereby grants to the Provider permission to use its name and parts of its visual identification, such as the company's logo, for the Provider’s marketing purposes, such as presenting the Customer on the Provider’s marketing materials as a company actively using the Hosted Services.
• 6.4 The Customer hereby grants to the Provider permission to create a case study. The case study will describe the way in which the Hosted Services were implemented, problems that were solved by the Hosted Services and benefits obtained by the Customer thanks to the Hosted Services. The Customer undertakes to provide the Provider with all information necessary to create the case study that is not considered to be confidential information. The Customer will be consulted with on the case study to obtain its approval before publishing.
• 6.5 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 10 days.
• 6.6 Within the period of 14 Business Days following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 6.5. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

7. Mobile App

• 7.1 For the avoidance of doubt, all provisions in the Agreement related to the Hosted Services or Platform can be related in the same manner to the Archdesk ERP Mobile App, which will be made available to the Customer by the Provider.

8. No assignment of Intellectual Property Rights

• 8.1 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

9. Charges

• 9.1 The Customer shall pay Charges to the Provider in accordance with the Agreement.
• 9.2 If the Charges are based in whole or in part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 9.2.
• 9.3 All amounts stated in or in relation to the Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

10. Payments

• 10.1 The first payment date is agreed by the Parties as defined within the SaaS Agreement. The payment frequency shall be annual and the full amount of the Charges for the respective year shall be paid upfront.
• 10.2 Next payment will occur annually as per the agreed date within the SaaS aAgreement for the duration of the agreement.
• 10.3 The Provider shall issue invoices for the Charges to the Customer with each payment.
• 10.4 The Customer must pay the Charges to the Provider providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
• 10.5 The Customer must pay the Charges by direct debit (using payment details as are notified by the Provider to the Customer from time to time).

11. Indexation Clause

• 11.1 The Customer hereby agrees to an annual increase of the Charges on every anniversary of the SaaS Agreement Effective Date according to the percentage change in the Service Producer Price Index (SPPI) published by the Office of National Statistics of the United Kingdom.
• 11.2 The increase shall be determined using the index “Service Producer Price Index for Other Professional, Scientific and Technical Services - index number: 6150690000, Series ID: HUFZ” as published in the Service Producer Price Index Statistical Bulletin (“Index”) or the nearest comparable data, if such Index is no longer published.
• 11.3 Percentage calculation of the increase shall be established using the following formula: 1 + Index at the time of calculation divided by Index at the time base price of Charges was set (results rounded to the nearest decimals). In no event shall this calculation cause a reduction in Charges below that payable during the foregoing year.

12. Provider's confidentiality obligations

• 12.1 The Provider must:

• • (a) keep the Customer Confidential Information strictly confidential;
  • (b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Agreement;
  • (c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
  • (d) act in good faith at all times in relation to the Customer Confidential Information; and
  • (e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

• 12.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
• 12.3 This Clause 11 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

• • (a) is known to the Provider before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
  • (b) is or becomes publicly known through no act or default of the Provider; or

• 12.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
• 12.5 The provisions of this Clause 11 shall continue in force 5 years following the termination of the Agreement.

13. Data protection

In accordance with the Regulation (EU) 2016/679 on the protection of a natural persons with regard to the processing of personal data and on the free movement of such data and the repeal of Directive 95/46/WE (hereinafter the “GDPR”), which forms part of the law of UK by virtue of section 3 of the European Union (Withdrawal) Act 2018 and by the Data Protection Act 2018, and in accordance with the Data Protection Act 2018 or any other law implementing the GDPR within the United Kingdom after the United Kingdom leaves the European Union, the Provider informs the Client on the following. 

• 13.1 Identity and contact details of the Data Controller

Personal Data Controller is EMS Operations (UK) Limited, having its registered office at 105, Dock 2, 85 Exploration Drive, LE4 5NU, Leicester, United Kingdom, registration number 10408653, phone number: +44 (0) 20 8638 8263, email: [email protected].

• 13.2 Data Protection Officer

The Provider as Personal Data Controller has not appointed the Personal Data Protection Officer because the Provider does not have such an obligation.

• 13.3 The legal basis for the processing

Client’s Personal Data will be processed for the following purposes and on the following legal bases:

1. Performance of the Agreement

On this legal basis, the Personal Data will be processed for the following purposes:

1. maintaining the contact with the Customer by the Provider; 
2. performance of the Agreement.

1. Legal obligation

On this legal basis, the Personal Data will be processed for the purpose of compliance with the legal obligations imposed on the Provider (e.g. accounting obligations or compliance with the requests of authorities or courts).

• 13.4 The categories of recipients of the Personal Data

The recipient of the personal data processed by the Provider will be:

1. The Provider’s subcontractors;
2. The external accounting firm providing accounting and staffing documentation for the Provider;
3. recipients authorized by law to receive them.

• 13.5 Automated decision making, including profiling

The Customer's personal data will not be processed in an automated manner or subjected to profiling. 

• 13.6 Transfers of Personal Data to third countries or international organizations

The Customer's Personal Data will not be transferred to third countries (i.e. outside the European Economic Area) and international organizations. The Customer's Personal Data may be however transferred to other countries within the European Economic Area. Such transfers are made on the basis of the Commission Implementing Decision of 28 June 2021 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by the United Kingdom. Moreover, the Customer’s Personal Data may be transferred to the third countries outside European Economic Area due to appropriate safeguards being in place and the data subjects having enforceable rights and effective legal remedies. 

• 13.7 Retention period for the Personal Data

The Customer's personal data will be kept for the duration of the Agreement and as long as is required in accordance with the relevant tax regulations, unless the Agreement provides for longer periods.

• 13.8 Rights of the data subjects

A natural person (data subject) whose personal data are processed by the Provider has the following rights under the data protection legislation:

Right of access – The data subject has the right to obtain from the Provider confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the information of the processing. 

Right to rectification - The data subject has the right to ask the Provider to rectify personal data the Customer thinks is inaccurate. The Customer has also the right to ask the Provider to complete information the Customer thinks is incomplete. 

Right to erasure - The data subject has the right to ask the Provider to erase his personal data in certain circumstances. 

Right to restriction of processing - The data subject has the right to ask the Provider to restrict the processing of his or her personal data in certain circumstances. 

Right to object to processing - The data subject has the right to object to the processing of his personal data in certain circumstances.

Right to data portability - The data subject has the right to to ask that we transfer the personal information you gave us to another organisation, or to you, in certain circumstances.

Please contact us at [email protected] if you wish to make a request.

• 13.9 Right to lodge a complaint

The Customer, who is residing in the UK, has the right to lodge a complaint to the Information Commissioner’s Office, if he considers that the processing of personal data concerning him violates the law.

Information Commissioner’s Office address:

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Helpline number: 0303 123 1113

ICO website: https://www.ico.org.uk 

The Customer, who is residing in other country within the European Economic Area, has the right to lodge a complaint to the local data protection authority (the list of the data protection authorities may be found ici), if he considers that the processing of personal data concerning him violates the law.

• 13.10 Customer‘s obligation to provide Personal Data

The Customer is not required by law to provide his Personal Data to the Provider, but it is necessary to conclude the Agreement. In the event of failure to do so, the Agreement would not be concluded.

14. Warranties

• 14.1 The Provider warrants to the Customer that:

• • (a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement;
  • (b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under the Agreement; and
  • (c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under the Agreement.

• 14.2 The Provider warrants to the Customer that:

• • (a) the Platform and Hosted Services will conform in all respects with the Hosted Services Specification and requirements agreed by both Parties in the Scope of Work Document;
  • (b) the Platform will incorporate security features reflecting the requirements of good industry practice.

• 14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with the Agreement, will not breach any laws, statutes or regulations applicable under English law.
• 14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with the Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
• 14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with the Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:

• • (a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
  • (b) procure for the Customer the right to use the Hosted Services in accordance with the Agreement.

• 14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
• 14.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

15. Acknowledgements and warranty limitations

• 15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
• 15.2 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification.
• 15.3 The Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems. The Customer may request from the Provider the integration between Hosted Services and other software and systems. The Provider will assess the feasibility of this integration, and if possible, create it for the Customer. Creation of the integration is treated as a separate service for the purposes of the Agreement, and will be priced individually.
• 15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under the Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in the Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

16. Limitations and exclusions of liability

• 16.1 Nothing in the Agreement will:

• • (a) limit or exclude any liability for fraud or fraudulent misrepresentation;
  • (b) limit any liabilities in any way that is not permitted under applicable law; or
  • (c) exclude any liabilities that may not be excluded under applicable law.

• 16.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in the Agreement:

• • (a) are subject to Clause 16.1; and
  • (b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

• 16.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
• 16.4 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software providing that this Clause 16.4 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 6.5 and Clause 6.6.
• 16.5 The total aggregate liability of each party to the other party under the Agreement in respect of any damage shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 months period preceding the occurrence of the event that resulted in damage. The existence of more than one event shall not extend the above limitation.

17. Force Majeure Event

• 17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement that obligation will be suspended for the duration of the Force Majeure Event.
• 17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

• • (a) promptly notify the other; and
  • (b) inform the other of the period for which it is estimated that such failure or delay will continue.

• 17.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

18.Termination

• 18.1 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of the Agreement.
• 18.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

• • (a) the other party:

• • • (i) is dissolved;
    • (ii) ceases to conduct all (or substantially all) of its business;
    • (iii) is or becomes unable to pay its debts as they fall due;
    • (iv) is or becomes insolvent or is declared insolvent; or
    • (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

• • (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  • (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);

19.Effects of termination

• 19.1 Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.11, 7, 10.2, 10.4, 12, 16, 19, 22 and 23.
• 19.2 Except to the extent that the Agreement expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
• 19.3 Within 60 days following the termination of the Agreement for any reason:

• • (a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
  • (b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties' other legal rights.

20.Notices

• 20.1 Any notice from one party to the other party under the Agreement must be given by one of the following methods:

• • (a) sent by email, in which case the notice shall be deemed to be received after one Business Day following service of the notice by email, providing that, if the stated time of deemed service of the notice by email is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

• 20.2 The Provider's contact details for notices under this Clause 19 are as follows: [email protected]

21.Subcontracting

• 21.1 The Provider may subcontract any of its obligations under the Agreement.
• 21.2 The Provider shall remain responsible to the Customer for the performance of any subcontractor obligations.

22. General

• 22.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
• 22.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
• 22.3 the Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
• 22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under the Agreement.
• 22.5 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
• 22.6 Subject to Clause 15.1, the Agreement shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
• 22.7 the Agreement shall be governed by and construed in accordance with English law.
• 22.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

23. Interpretation

• 23.1 In the Agreement, a reference to a statute or statutory provision includes a reference to:

• • (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
  • (b) any subordinate legislation made under that statute or statutory provision.

• 23.2 The Clause headings do not affect the interpretation of the Agreement.
• 23.3 References in the Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
• 23.4 In the Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

24. Financial provisions for additional services not specified in the Agreement

• £0.45 per GB per month of exceeded storage.
• £0.15 per month per additional contact.
• £2.50 per month per additional Employee.
• £8.50 per month per additional bundle of 500 Contracts or Suppliers Package.
• £60.00 per month per additional bundle of 200 Projects Package.
• £25.00 per month per additional £1Million Value of Projects.
• £15.50 per month per additional bundle o 1,000 Bookings Package.
• £30.00 per month per additional £1Million Value of Sales.
• £0.04 per processed SMS.
• £5.00 a month for a phone number provided by Archdesk.
• £0.01 for every minute of incoming calls.
• £0.02 for every minute of outgoing calls to local numbers.
• £0.05 for every minute of connections outgoing to mobile numbers.
• £0.005 for each minute of call recording + storage fee as per file storage plan.
• Each additional on-site training session is going to be quoted separately.
• All prices are excluding VAT.