SECTION 3 –TERMS AND CONDITIONS

1. INTERPRETATION

• • 1.1: In addition to the definitions set out in the Section 1 (Commercial Details) and Section 2A (Service Description) available at https://www.navitassafety.com/service-descriptions/, the definitions and rules of interpretation in this Clause 1 apply in this Agreement:

• 1.2: Any words following the terms “including”, “include”, “in particular”, 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.
  • 1.2.1: Unless stated otherwise, a reference to: a part, is to a part of a Section; and a clause, is to a clause within the Section in which the reference is made.
• 1.3: A reference to a statute or statutory provision:
  • 1.3.1: is a reference to it as it is in force as at the date of this Agreement; and
  • 1.3.2: shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
• 1.4: A reference to “writing” or “written” includes e-mails.

2. USE OF THE SERVICES AND PLATFORMS

• • 2.1: Navitas hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables during the Subscription Term. This right is granted:
    • 2.1.1: solely for the Client’s internal business operations;
    • 2.1.2: in respect of DFS, Compliance and Audit Services, with respect to the relevant Sites and Site Subscriptions; and
    • 2.1.3: subject to:
      (a) the other terms and conditions of this Agreement; and
      (b) such User Subscriptions and acceptable use policies or other “end-user licence” agreements as Navitas may reasonably include on the Platform(s) from time to time (save that such policies and agreements may not vary the Charges or impose any additional costs in respect of the use of the Platform(s)).
  • 2.2: The Client shall not:
    • • • 2.2.1: access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
          (a) is harmful, threatening, defamatory, obscene, infringing, harassing, sexually explicit, or racially or ethnically offensive;
          (b) promotes unlawful violence;
          (c) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
          (d) is otherwise illegal or causes damage or injury to any person or property;
        • 2.2.2: 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:
          (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software, Hardware, Documentation and/or Deliverables (as applicable) in any form or media or by any means; or
          (b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Hardware;
        • 2.2.3: access all or any part of the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables in order to build a product or service which competes with the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables;
        • 2.2.4: use the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables to provide services to third parties;
        • 2.2.5: subject to Clause 14.9.1 (Assignment and Sub-Contracting), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables available to any third party except the Authorised Users; or
        • 2.2.6: attempt to obtain, or assist third parties in obtaining, access to the Hardware, Software, Services, Platform(s) Documentation and/or Deliverables, other than as provided under this Clause 2 (or as otherwise agreed with Navitas in writing.
  • 2.3: Navitas reserves the right, without liability or prejudice to its other rights, to disable the Client’s access to any Platform if the Client breaches the provisions of Clause 2.2.
  • 2.4: The rights provided under this Clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

3. CLIENT DATA

• • 3.1: Save as expressly set out in this Agreement, the Client shall:
    • 3.1.1: own all right, title and interest in and to all of the Client Data that is not personal data; and
    • 3.1.2: have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
  • 3.2: Navitas shall follow its archiving procedures for Client Data as set out in its Back-Up Policy available on the relevant Platform(s), as such document may be amended by Navitas in its sole discretion from time to time.
  • 3.3: In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against Navitas shall be for Navitas to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Navitas in accordance with the archiving procedure described in its Back-Up Policy.
  • 3.4: Navitas shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Navitas to perform services related to Client Data maintenance and back-up for which it shall remain fully liable under Clause 3.10 below).
  • 3.5: Both Navitas and the Client will comply with all applicable requirements of the Data Protection Legislation. This Clause 3 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
  • 3.6: Navitas and the Client acknowledge that:
    • 3.6.1: if Navitas processes any personal data on the Client’s behalf when performing its obligations under this Agreement, the Client is the controller and Navitas is the processor for the purposes of the Data Protection Legislation (where “Controller” and “Processor” have the meanings as defined in the Data Protection Legislation);
    • 3.6.2: Section 2B (Data Protection Details) available at https://www.navitassafety.com/data-protection/ sets out the scope, nature and purpose of processing by Navitas, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, “Personal Data”) and categories of data subject; and
    • 3.6.3: the personal data may be transferred or stored outside the EEA in order to carry out the Services and Navitas’ other obligations under this Agreement.
  • 3.7: Without prejudice to the generality of Clause 3.5 above, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Navitas for the duration and purposes of this Agreement so that Navitas may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Client’s behalf.
  • 3.8: Without prejudice to the generality of Clause 3.5 above, Navitas shall, in relation to any Personal Data processed in connection with the performance by Navitas of its obligations under this Agreement:
    • 3.8.1: process that Personal Data only on the written instructions of the Client or as otherwise required by Data Protection Legislation;
    • 3.8.2: not transfer any Personal Data outside of the European Economic Area unless Navitas complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
    • 3.8.3: assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
    • 3.8.4: notify the Client without undue delay on becoming aware of a Personal Data breach.
  • 3.9: Navitas and the Client shall ensure that it has in place appropriate technical and organisational measures to protect against:
    • 3.9.1: unauthorised or unlawful processing of Personal Data; and
    • 3.9.2: accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.

• • 3.10: Navitas and the Client agree that Navitas:
    • 3.10.1: may appoint third party processors of Personal Data;
    • 3.10.2: shall have entered, or will enter, into a written agreement with such third party processors substantially on that third party’s standard terms of business, in accordance with the “EU Model Clauses” or otherwise incorporating terms which are substantially similar to those set out in this Clause 3; and
    • 3.10.3: as between the Client and Navitas, shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this Clause 3.10.
  • 3.11: The Client agrees that Navitas may complete credit or other financial checks and retain and process the results of those checks when determining if and how to contract with the Client.

4. HARDWARE

DELIVERY

• • 4.1: Navitas shall deliver the Hardware to the Site(s), using all reasonable endeavours to complete delivery by the date and time agreed between Navitas and the Client. Delivery shall be completed on the completion of the unloading of the Hardware at the relevant Site(s).
  • 4.2: Navitas may deliver the Hardware by instalments, which may be invoiced separately.
  • 4.3: Delays in the delivery of Hardware shall not entitle the Client to:
    • 4.3.1: refuse to take delivery of the Hardware; or
    • 4.3.2: terminate this Agreement, subject always to Clause 13.2.2 (Term and Termination).
  • 4.4: Navitas shall have no liability for, and may charge the Client for any costs it reasonably incurs in respect of, any failure or delay in delivering Hardware to the extent that any failure or delay is caused by the Client’s failure to comply with its obligations under this Agreement.

INSTALLATION

• • 4.5: Unless otherwise agreed in writing, Navitas shall, at its discretion:
    • 4.5.1: install the Hardware at the relevant Site(s); or
    • 4.5.2: provide the Client with the means to install the Hardware via the Platform or another application, in which case the installation shall be completed by the Client.
  • 4.6: The Client shall procure that:
    • 4.6.1: a duly authorised employee, officer, contractor or agent of the Client shall be present at each installation of the Hardware, whose acceptance of installation shall constitute conclusive evidence that the Client has examined the Hardware and installation and has found it to be in good condition and complete; and
    • 4.6.2: it provide any materials, facilities or access which Navitas may reasonably specify as necessary for an installation at a Site (which shall include a Wi-Fi system of a standard and coverage suitable for the installation of the Hardware).
  • 4.7: Navitas shall have no liability for, and may charge the Client for any costs it reasonably incurs in respect of, any:
    • 4.7.1: failure or delay in the installation of Hardware;
    • 4.7.2: failure to provide suitable materials, facilities or access at a Site; and/or
    • 4.7.3: misuse of Hardware, to the extent that any failure, delay or misuse is caused by the Client’s failure to comply with its obligations under this Agreement. This may include:

• 4.7.4: a failure to pay any charges due in respect of an installation in advance of the installation;
• 4.7.5: aborted visit charges if an installation cannot be satisfactorily completed in one visit to a Site; and
• 4.7.6: costs incurred in respect of alternative installation solutions, such as the use of Sim Cards rather than Wi-Fi systems.

WARRANTY

• • 4.8: Subject to Clauses 4.9 and 4.10 below, the Hardware supplied to the Client by Navitas under this Agreement shall:
    • 4.8.1: be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
    • 4.8.2: be free from defects in design, material and workmanship and remain so for:
      (a) 12 months after Delivery; or
      (b) such other period of time as Navitas and the Client may agree in writing.
  • 4.9: Navitas shall use all reasonable endeavours to remedy, free of charge, any Hardware in material breach of Clause 4.8 above, provided that:
    • 4.9.1: the Client notifies Navitas of any defect in writing within ten Business Days of becoming aware of the defect;
    • 4.9.2: the Client does not make any further use of the relevant Hardware after having given notice to Navitas;
    • 4.9.3: Navitas is permitted to make a full examination of the alleged defect; and
    • 4.9.4: the defect is directly attributable to defective material, workmanship or design, and in particular does not result from:
      (a) fair wear and tear, wilful damage, negligence, abnormal storage or working conditions;
      (b) misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Navitas’ authorised personnel;
      (c) the Client’s failure to comply with Clause 2 (Use of the Services and Platforms) or Clause 7 (Client’s Obligations);
      (d) any specification, information, drawing, design or any other assistance supplied or furnished by the Client or on its behalf; or
      (e) changes made to comply with Applicable Law.
  • 4.10: If Navitas fails to remedy any material defect in the Hardware in accordance with Clause 4.9 above, Navitas shall, at its discretion replace or provide a temporary substitute for the Hardware (whether with an exact copy or a comparable replacement). Navitas shall have no further liability to the Client for the rejected Hardware’s failure to comply with Clause 4.9 above.

TITLE AND RISK

• • 4.11: Risk in the Hardware shall pass to the Client on Delivery.
  • 4.12: Title to the Hardware shall not pass to the Client:
    • 4.12.1: unless specifically agreed between the parties in writing; and
    • 4.12.2: in any event, until the Client has paid Navitas for:
      (a) the Hardware; and
      (b) all other sums that are or that become due to Navitas from the Client on any account on or before the expiry of this Agreement.
  • 4.13: Until title to Hardware has passed to the Client, the Client shall:
    • • 4.13.1: store the Hardware separately from all other goods held by the Client so that it remains readily identifiable as Navitas’ property;
      • 4.13.2: not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware; and
      • 4.13.3: maintain the Hardware in satisfactory condition; and
      • 4.13.4: keep it insured for its full replacement value against all risks with a reputable insurer.

5. THIRD PARTY PROVIDERS

• • 5.1: The Client acknowledges that the Platform Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third party websites and that it does so solely at its own risk. Any contract entered into via any third party website is between the Client and the relevant third party, and not Navitas.
  • 5.2: Navitas:
    • 5.2.1: makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website and any contract entered into by the Client, with any such third party;
    • 5.2.2: recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third party website; and
    • 5.2.3: does not endorse or approve any third party website or content made available via the Platform Services.

6. NAVITAS’ OBLIGATIONS

• • 6.1: Navitas shall:
    • 6.1.1: during the Subscription Term, provide the relevant Hardware, Software, Services, Platform(s), Documentation and Deliverables to the Client:
      (a) with reasonable skill and care; and
      (b) in accordance with Applicable Law.
    • 6.1.2: provide the Platforms with an annual uptime of 99.5%. Platform update calculations shall exclude:
      (a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
      (b) unscheduled maintenance, provided that Navitas has used reasonable endeavours to give the Client at least three Business Hours’ notice in advance;
    • 6.1.3: where required to provide support services, provide the Client with Navitas’ standard customer support services during Business Hours in accordance with the Support Services Policy in effect at the time that the Services are provided. Navitas may amend the Support Services Policy in its sole and absolute discretion from time to time;
    • 6.1.4: maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement; and
    • 6.1.5: meet any performance dates specified in the Service Description or otherwise agreed between Navitas and the Client in writing from time to time (but such dates shall not be of the essence of this Agreement).
    • 6.1.6: co-operate with the Client to implement our standard digital templates covering Opening/Closing Checklists, Cleaning Schedules, Accident Reporting, Maintenance Tracker etc free of charge. Additional bespoke templates may thereafter be created by written agreement between the parties at the prevailing fee.
  • 6.2: Clause 6.1 above shall not apply to the extent of any non-conformance which is caused by:
    • 6.2.1: use of the Hardware, Software, Services, Platform(s), Documentation or Deliverables contrary to Navitas’ instructions; or
    • 6.2.2: modification or alteration of the Hardware, Software, Services, Platform(s), Documentation or Deliverables by any party other than Navitas or Navitas’ duly authorised personnel.
  • 6.3: Navitas:
    • 6.3.1: does not warrant that:
      (a) the Client’s use of the Platform Services will be uninterrupted or error-free; or
      (b) the Hardware, Software, Services, Platform(s), Documentation, Deliverables and/or the information obtained by the Client through them will meet the Client’s requirements; and
    • 6.3.2: is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over the internet or other communications networks and facilities.

The Client acknowledges that the Hardware, Software, Services, Platform(s), Documentation and Deliverables may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

• • 6.4: If the Services do not conform with Clauses 6.1 to 6.3 above, Navitas shall, at its option and expense:
    • 6.4.1: use all reasonable commercial endeavours to correct any such non-conformance promptly; or
    • 6.4.2: provide the Client with an alternative means of accomplishing the desired performance.

Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1 above.

7. CLIENT’S OBLIGATIONS

• • 7.1: The Client shall:
    • 7.1.1: provide Navitas with such:
      (a) co-operation; and
      (b) access to information,

as may be required by Navitas in order to provide the Services, including Client Data, security access information, configuration information, health and safety information and security requirements that apply at any of the Sites;

• • • 7.1.2: provide such materials, documents, information, facilities, access and working conditions as are reasonably necessary to enable Navitas to provide the Services safely and expeditiously;
    • 7.1.3: comply with all Applicable Law with respect to its activities under and in relation to this Agreement. The Client acknowledges and accepts that its own independent obligations (such as in respect of health and safety and food safety) shall remain with it and nothing in this Agreement shall derogate from those obligations;
    • 7.1.4: carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
    • 7.1.5: ensure that the Authorised Users use the Hardware, Software, Services, Platform(s), Documentation and Deliverables in accordance with the terms and conditions of this Agreement;
    • 7.1.6: be responsible for any Authorised User’s breach of the Client’s obligations under this Agreement;
    • 7.1.7: obtain and maintain all necessary licences, consents and permissions necessary for Navitas, its employees, officers, subcontractors and agents to perform their obligations under this Agreement;
    • 7.1.8: ensure that each Authorised User keeps any passwords relating to their use of the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables confidential;
    • 7.1.9: use all reasonable endeavours to prevent any unauthorised access to, or use of, the Hardware, Software, Services, Platform(s), Documentation and Deliverables and, in the event of any such unauthorised access or use, promptly notify Navitas;
    • 7.1.10: ensure that its network, Wi-Fi hardware, cellular devices, and systems comply with the relevant specifications provided by Navitas from time to time;
    • 7.1.11: be, to the extent permitted by Applicable Law and except as otherwise expressly provided in this Agreement, solely responsible for:
      (a) procuring, maintaining and securing its use of the internet, Wi-Fi hardware, cellular devices or other communications networks and facilities (whether from its systems to Navitas’ data centres or otherwise); and
      (b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s use of the internet or other communications networks and facilities;
    • 7.1.12: ensure that any Hardware is:
      (a) kept and operated in a suitable environment;
      (b) used only for the purposes for which it is designed; and
      (c) calibrated and operated in a proper manner by trained competent staff;
    • 7.1.13: take such steps as may be necessary to ensure, so far as is reasonably practicable, that the Hardware is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
    • 7.1.14: make no alteration to the Hardware and not remove any existing component from the Hardware unless the component is replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one supplied by Navitas which is of a similar make and model or an improved/advanced version of it;
    • 7.1.15: keep Navitas fully informed of all material matters relating to the Hardware;
    • 7.1.16: keep the Hardware at all times at the relevant Site, and not move or attempt to move any part of the Hardware to any other location without Navitas’ prior written consent;
    • 7.1.17: permit Navitas to inspect the Hardware at all reasonable times and for such purpose to enter upon the Sites or any premises at which the Hardware may be located;
    • 7.1.18: not, without the prior written consent of Navitas, part with control of (including for the purposes of repair or maintenance), sell or offer for sale or lease the Hardware to a third party;
    • 7.1.19: promptly inform Navitas of any proposed changes to each or any list of the Site(s); and
    • 7.1.20: permit Navitas, or Navitas’ designated auditor, to audit the Services in order to establish the Client’s compliance with this Agreement, on the basis that:
      (a) audits are conducted less than once every six months;
      (b) audits are conducted at Navitas’ expense;
      (c) reasonable prior notice shall be given of any proposed audit, in such a manner as not to substantially interfere with the Client’s normal conduct of business;
      (d) if an audit reveals a material breach of this Agreement, then without prejudice to Navitas’ other rights, Navitas may cease the provision of the Services, Hardware, Documentation and Deliverables and prevent further access to the Platform(s) until the breach is rectified; and
      (e) if an audit reveals that the Client has underpaid any Charges, then without prejudice to Navitas’ other rights, the Client shall pay to Navitas an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
    • 7.1.21: subject to Clause 8.4.3, and unless otherwise agreed with Navitas in writing, be responsible for the completion of any payment, settlement, process, declaration or other documentation relating to taxes, assessments, duties, permits, customs charges, import or export tariffs or other regulatory fees or related charges in relation to the transportation of the Hardware, including the importation of the Hardware into any territory.
  • 7.2: In the event of delays or failures in the Client’s performance of its obligations under Clause 7.1 above (including failures by its employees, officers, subcontractors or agents), Navitas may:
    • 7.2.1: make any reasonable adjustments to any agreed timetable, delivery or performance schedules;
    • 7.2.2: charge the Client any reasonably incurred additional costs (including, if Navitas is not provided with the access reasonably necessary to carry out a Service and subsequently a Service cannot be provided by Navitas, then the sums payable shall be equal to the relevant Audit Charges detailed in Part 5 of Section 1 (Commercial Details) (Services and Charges Overview));
    • 7.2.3: where applicable, charge the Client reasonable “aborted development” costs in respect of wasted development or other investment time;
    • 7.2.4: where applicable, charge the Client reasonable “aborted visit” costs in respect of wasted travel and time; and/or
    • 7.2.5: refuse to begin or continue the provision of an element of the Services (such as training or support services) until it has agreed a suitable resolution to the delay or failure with the Client.

8. CHARGES AND PAYMENT

• • 8.1: Navitas will invoice the Client for the Charges in accordance with Section 1 (Commercial Details). If no details are included in Section 1, Navitas shall invoice the Client at the start of each month in advance for Services and Hardware.
  • 8.2: Unless otherwise stated in this Agreement, the Client shall pay each invoice within 30 days of the date of invoice. The Client shall also provide to Navitas and maintain during the Subscription Term:
    • 8.2.1: valid, up-to-date and complete credit card details which the Client authorises Navitas to charge in accordance with the terms of this Agreement; or
    • 8.2.2: where requested by Navitas in writing, approved purchase order information acceptable to Navitas; and
    • 8.2.3: any other relevant valid, up-to-date and complete contact and billing details reasonably requested by Navitas.
  • 8.3: If Navitas has not received payment within 10 Business Days after the due date, and without prejudice to any other rights and remedies of Navitas:
    • 8.3.1: while the invoice(s) concerned remain unpaid, Navitas:
      (a) may, without liability to the Client, disable the Client’s passwords, accounts and access to all or part of the Platforms; and
      (b) shall be under no obligation to provide any or all of the Services; and
    • 8.3.2: interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Navitas’ bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
  • 8.4: All amounts and charges stated or referred to in this Agreement:
    • 8.4.1: unless otherwise agreed by Navitas in writing, shall be payable in pounds sterling;
    • 8.4.2: are non-cancellable and non-refundable;
    • 8.4.3: are exclusive of VAT and any applicable import or export taxes, tariffs, customs and related charges, which shall be added to Navitas’ invoice(s) at the appropriate rate; and
    • 8.4.4: shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Law).
  • 8.5: If, at any time whilst using the Services, the Client exceeds any amount of disk storage space specified in the Documentation, Navitas shall charge the Client, and the Client shall pay, Navitas the relevant excess storage charges listed in the Documentation.
  • 8.6: The Monthly Charges due during the Initial Term or any Renewal Term may, in some circumstances, be reduced to reflect the provision of one or more free (or otherwise reduced cost) months of Services (e.g. the Monthly Charges for a 25 month Initial Term could be based on the agreed Charges for 24 months of the Services being spread over the 25 actual months of the Initial Term). If any such reduction is set out in Section 1 (Commercial Details) (or otherwise agreed between the parties in writing) then, on the expiry of the then current Initial Term or Renewal Term, the Monthly Charges shall be recalculated by Navitas without reference to the free (or otherwise reduced cost) months (e.g. in the example above, the Monthly Charges would increase to what they would have been if the Initial Term was 24 rather than 25 months long). Any such recalculated Monthly Charges shall apply without the need for further notice from Navitas.
  • 8.7: Further to Clause 8.6 above, Navitas shall be entitled to increase the Charges payable under this Agreement once in each twelve month period to reflect increases in the Retail Prices Index (or any replacement index). Navitas shall give the Client not less than one months’ prior notice of the change. The price change will be applied on each anniversary of the Effective Date.

9. INTELLECTUAL PROPERTY RIGHTS

8. • 9.1: The Client acknowledges and agrees that, except as otherwise expressly stated herein, or agreed in writing between Navitas and the Client (making explicit reference to this Agreement):
     • 9.1.1: Navitas and/or its licensors own all Intellectual Property Rights in the Hardware, Software, Services, Platform(s), Documentation and Deliverables; and
     • 9.1.2: this Agreement does not grant the Client any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Hardware, Software, Services, Platform(s), Documentation or Deliverables.
   • 9.2: Navitas grants the Client, or shall procure the direct grant to the Client of, a UK wide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, copy and modify the Deliverables for the purpose of receiving the Services from Navitas during the Subscription Term.
   • 9.3: The Client may not sub-license, assign or otherwise transfer the rights granted in Clause 9.2 above.
   • 9.4: Navitas confirms that it has all the rights in relation to the Hardware, Software, Services, Platform(s), Documentation and Deliverables that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10. CONFIDENTIALITY

• • 10.1: Navitas and the Client 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:
    • 10.1.1: is or becomes publicly known other than through any act or omission of the receiving party;
    • 10.1.2: was in the other party’s lawful possession before the disclosure;
    • 10.1.3: is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
    • 10.1.4: is independently developed by the receiving party.
  • 10.2: Save as expressly set out in this Agreement, each party shall, for the Subscription Term and a period of five years thereafter, hold the other’s Confidential Information in confidence and not:
    • 10.2.1: make the other’s Confidential Information available to any third party; or
    • 10.2.2: use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
  • 10.3: Navitas and the Client 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, officers, subcontractors or agents in violation of the terms of this Agreement.
  • 10.4: A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable 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.
  • 10.5: Notwithstanding Clause 3 (Client Data) and Clauses 10.1 to 10.4 above, the Client agrees that Navitas may:
    • 10.5.1: where it has appointed a sub-contractor pursuant to Clause 14.9.2 (Assignment and Sub-contracting), disclose such Confidential Information as is necessary for the sub-contractor’s performance of its obligations (and Navitas shall remain responsible for that sub-contractor’s use of such Confidential Information);
    • 10.5.2: publicise its relationship with the Client, including by reference in any marketing materials, tenders, company statements, so long as such publicity does not divulge any Client Data or details of the Charges; and
    • 10.5.3: where the relevant Client Data has been aggregated and anonymised in accordance with good industry practice, review, collect, process, disclose and sell all or any part of it both:
      (a) internally and to members of its group (whether for training purposes, to improve Navitas’ client support, for the completion of improvements to the Services and the Hardware, or otherwise); and
      (b) to third parties (including manufacturers of the Hardware or similar devices).

11. INDEMNITY

11. • 11.1: Navitas shall defend the Client against any claim that the Hardware, Software, Services, Platform(s), Documentation or Deliverables infringes any Intellectual Property Rights effective in the United Kingdom as of the Effective Date, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
      • 11.1.1: Navitas is given prompt notice of any such claim;
      • 11.1.2: Navitas is given sole authority to defend or settle the claim; and
      • 11.1.3: the Client provides reasonable co-operation to Navitas in the defence and settlement of such claim, at Navitas’ expense.
    • 11.2: In the defence or settlement of any claim, Navitas may:
      • 11.2.1: procure the right for the Client to continue using the relevant Hardware, Software, Services, Platform(s), Documentation and/or Deliverables;
      • 11.2.2: replace or modify the relevant Hardware, Software, Services, Platform(s), Documentation and/or Deliverables so that they become non-infringing; or
      • 11.2.3: if such remedies are not reasonably available, terminate this Agreement on two Business Days’ notice to the Client.
    • 11.3: In no event shall Navitas, its employees, officers, sub-contractors or agents be liable to the Client to the extent that the alleged infringement is based on:
      • 11.3.1: a modification of the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables by anyone other than Navitas;
      • 11.3.2: the Client’s use of the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables in a manner contrary to this Agreement or the instructions given to the Client by Navitas; or
      • 11.3.3: the Client’s use of the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables after notice of the alleged or actual infringement from Navitas or any appropriate authority.
    • 11.4: This Clause 11, subject to Clause 12.2 (Limitation of Liability), states the Client’s sole and exclusive rights and remedies, and Navitas’ (including Navitas’ employees’, officers’, sub-contractors’ and agents’) entire obligations and liability, for infringement of any Intellectual Property Rights.
    • 11.5: The Client shall indemnify and hold harmless Navitas against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal charges) arising out of or in connection with the Client’s default under this Agreement or misuse of the Hardware, Software, Services, Platform(s), Documentation and/or Deliverables.

12. LIMITATION OF LIABILITY

• • 12.1: Except as expressly and specifically provided in this Agreement:
    • 12.1.1: the Client assumes sole responsibility for results obtained from the use of the Hardware, Software, Services, Platform(s), Documentation and Deliverables by the Client, and for conclusions drawn from such use; and
    • 12.1.2: 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.
  • 12.2: Subject to Clause 12.1 above:
    • 12.2.1: Navitas shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
      (a) loss, damage, error, inaccuracy or omission, if and to the extent it is caused, directly or indirectly, by:
      i) errors, inaccuracies or omissions in any documents, information, materials, instructions or scripts provided to Navitas by the Client or any third party on the Client’s behalf;
      ii) restrictions on Navitas’ access to a Site;
      iii) delays or failures in the Client’s performance of its obligations under Clause 7.1 (including corresponding failure by its employees, officers, subcontractors or agents);
      iv) actions taken by Navitas at the Client’s direction;
      v) any failure of Wi-Fi facilities, internet access or other communications networks and facilities provided or used by the Client or any other third party on the Client’s behalf; or
      vi) restrictions on Navitas’ access to the relevant Site(s) or premises subject to the Services;
      (b) loss of profits, sales, business, anticipated savings or agreements;
      (c) loss of or depletion of goodwill and/or similar losses;
      (d) loss or corruption of software, data or information;
      (e) loss of stock or goods;
      (f) pure economic loss; or
      (g) special, indirect or consequential loss, costs, damages, charges or expenses; and
  • 12.2.2: Navitas’ total aggregate liability in contract (including in respect of 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 Charges paid to Navitas by the Client during the 12 months immediately preceding the date on which the claim arose.

13. TERM AND TERMINATION

• • 13.1: This Agreement shall, unless otherwise terminated as provided in this Clause 13, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
    • 13.1.1: where relevant, the NDS Services and / or Compliance Services do not commence within 3 months of the Effective Date, and Navitas gives the Client written notice either in respect of this entire Agreement or the agreement in respect of the NDS Services and / or Compliance Services in which case this entire Agreement or the agreement in respect of the NDS Services and / or Compliance Services  shall terminate; or
    • 13.1.2: either Navitas or the Client gives the other party not less than 90 days’ written notice, either in respect this entire Agreement or the agreement in respect of any individual Service Line(s), to expire on the date of the expiry of the Initial Term or then current Renewal Period, in which case this entire Agreement or the agreement in respect of the relevant Service Line(s) shall terminate upon that expiry date; or
    • 13.1.3: otherwise terminated in accordance with this Agreement.
  • 13.2: Without affecting any other right or remedy available to it, either Navitas or the Client may terminate this Agreement with immediate effect by giving written notice to the other party if:
    • 13.2.1: 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 10 Business Days after being notified in writing to make such payment;
    • 13.2.2: 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 20 Business Days after being notified in writing to do so;
    • 13.2.3: the other party suspends payment of its debts, is unable to pay its debts as they fall due or admits inability to pay its debts;
    • 13.2.4: the other party enters into any compromise or arrangement with its creditors;
    • 13.2.5: a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
    • 13.2.6: an administrator, administrative receiver or receiver is appointed over the assets of the other party;
    • 13.2.7: a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
    • 13.2.8: any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 13.2.3 to Clause 13.2.7 above (inclusive); or
    • 13.2.9: the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    • 13.3: The Client has a cooling off period of one working day from the Effective Date of this Agreement in which to notify Navitas if it does not wish to proceed with the Agreement. Provided that the Client notifies Navitas by email of its decision to withdraw from the Agreement within one working day of the Effective Date, the Agreement will be terminated (“Cooling Off Termination”). Any Charges paid by the Client prior to such Cooling Off Termination will be refunded.
  • 13.4: On termination of this Agreement for any reason:
    • 13.4.1: all licences granted under this Agreement shall immediately terminate;
    • 13.4.2: the Client shall immediately cease all use of the Hardware, Software, Services, Platform(s), Documentation and Deliverables (including any policies produced by Navitas for the Client);
    • 13.4.3: Navitas and the Client shall:
      (a) return to the other party at its own expense; and
      (b) make no further use of, any equipment, property, Documentation and other items (and all copies of them) belonging to the other party (including any Hardware still owned by Navitas, which shall be returned within 14 days of the date of termination or expiry and at the Client’s own cost and risk);

• • • 13.4.4: if the Client fails to promptly comply with Clause 13.4.3 above:
      (a) Navitas may enter any premises of the Client or of any third party where the relevant equipment, property, Documentation and other items is stored to recover it; and
      (b) the Client shall be liable to pay Navitas nine times the then total Monthly Charges to cover the cost of the Hardware (which may immediately be invoiced by Navitas);
    • 13.4.5: Navitas may destroy or otherwise dispose of any of the Client Data and / or the Deliverables in its possession, unless Navitas receives, no later than 10 days after the date of termination, a written request for the delivery to the Client of the then most recent back-up of the Client Data and / or the Deliverables. Navitas shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time:
      (a) paid all sums outstanding at and resulting from termination (whether or not due at the date of termination);
      (b) agreed to pay such sums as Navitas may specify in respect of any reasonable expenses incurred by Navitas in returning or disposing of Client Data and / or Deliverables; and
      (c) in respect of the Deliverables, agreed to pay such sum as may be agreed with Navitas in respect of the use of those Deliverables following the Subscription Term (which, if agreed, may include sums in respect of associated development costs).
    • 13.4.6: where this Agreement is terminated by Navitas for any reason other than Clause 13.1.2 above, any sums currently or to be payable in respect of this Agreement during the remainder of:
      (a) the Initial Term; or
      (b) the then current Renewal Period,

may immediately be invoiced by Navitas and shall be payable by the Client in accordance with Clause 8 (Charges and Payment);

• • • 13.4.7: any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect; and
    • 13.4.8: any rights, remedies, obligations or liabilities of Navitas or the Client that have accrued up to the date of termination shall not be affected or prejudiced.

14. GENERAL

• • 14.1: NON-SOLICITATION:
    • 14.1.1: The Client shall not, except with Navitas’ prior written consent, during the Subscription Term or for a further period of six months after the termination of this Agreement:
      (a) directly or indirectly solicit or entice away from Navitas’ employment; or
      (b) employ or attempt to employ, any person who is, or has been, employed or engaged by Navitas in the provision of the Services (whether as an employee, officer, subcontractor, agent, consultant or otherwise).

If the Client breaches Clause 14.1.1 above, it shall pay Navitas a sum equal to one year’s basic remuneration of that employee, officer, subcontractor, agent, consultant plus the costs reasonably incurred by Navitas in replacing such person.

• • 14.2: NON-EXCLUSIVITY: This Agreement shall not prevent Navitas from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and services which are similar to those provided under this Agreement.
  • 14.3: NOTICES:
    • 14.3.1: Any notice required to be given under this Agreement shall be in writing and shall be:
      (a) delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes; or
      (b) sent by e-mail to any e-mail address provided for the purpose by the other party (which includes any e-mail address used or provided by the Client when negotiating this Agreement).
    • 14.3.2: A notice:
      (a) delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 am on the first Business Day following delivery);
      (b) sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course; and
      (c) sent by e-mail shall be deemed to have been received at the time of transmission.

This Clause 14.3 does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

• • 14.4: FORCE MAJEURE:
    • 14.4.1: Navitas shall have no liability to the Client under this Agreement if it is prevented from or hindered or delayed in performing its obligations under this Agreement (in whole or in part), or if performing its obligations under this Agreement is rendered more onerous (in whole or in part), or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control (a “Force Majeure Event”).
    • 14.4.2: Force Majeure Events shall include:
      (a) strikes or other industrial disputes (whether involving the workforce of Navitas or any other party);
      (b) failure of a utility service, transport network or communications network or facility;
      (c) failure of one or more data centres;
      (d) acts of God;
      (e) government actions;
      (f) pandemic, epidemic or other notifiable disease or public health emergency;
      (g) the imposition of travel restrictions;
      (h) terrorism, war, riot, civil commotion, malicious damage;
      (i) compliance with Applicable Law or any governmental order, rule, regulation or direction (including those caused directly or indirectly by the coronavirus (COVID-19) outbreak);
      (j) accident;
      (k) breakdown of equipment (electronic or otherwise);
      (l) fire, flood, storm or other natural disaster;
      (m) default of suppliers or sub-contractors; or
      (n) import or export regulations or embargoes.

The occurrence of a Force Majeure Event shall not release the Client from its obligation to pay any sum due under the terms of this Agreement.

• • 14.5: CONFLICT: If there is an inconsistency between any Sections of this Agreement they shall prevail in the following order:
    • 14.5.1: Section 1 (Commercial Details);
    • 14.5.2: Section 2A (Service Description);
    • 14.5.3: Section 2B (Data Protection Details); and
    • 14.5.4: Section 3 (Terms and Conditions).
  • 14.6: VARIATION:
    • 14.6.1: No variation of Section 1 (Commercial Details) of this Agreement shall be effective unless it is agreed by the parties in writing.
    • 14.6.2: Section 2A (Service Descriptions), Section 2B (Data Protection Details) and Section 3 (Terms and Conditions) of this Agreement may be varied by Navitas from time to time by amending the versions of them shown on the Navitas website or Platform. However, such variations shall be subject to any provisions expressly agreed by the parties in Section 1 (Commercial Details).
  • 14.7: WAIVER:
    • 14.7.1: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by Applicable 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.
    • 14.7.2: 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.
  • 14.8: ENTIRE AGREEMENT:
    • 14.8.1: This Agreement constitutes the entire agreement between Navitas and the Client and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • 14.8.2: Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
    • 14.8.3: Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
  • 14.9: ASSIGNMENT AND SUB-CONTRACTING:
    • 14.9.1: The Client shall not, without Navitas’ prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    • 14.9.2: Navitas 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.
  • 14.10: THIRD PARTY RIGHTS:
    • 14.10.1: Subject to Clauses 14.10.2 and 14.10.3 below, this Agreement does not confer any rights on any person or party other than the parties to this Agreement.
    • 14.10.2: Rights granted to Navitas under this Agreement shall be directly enforceable against the Client by any member of the Navitas corporate group to whom any right or obligation under this Agreement is assigned or sub-contracted pursuant to Clause 14.9.2 (Assignment and Sub-Contracting). The Client shall be entitled to treat breaches of this Agreement by any such member of the Navitas corporate group on the basis that they were committed by Navitas.
    • 14.10.3: The rights of Navitas and the Client to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
  • 14.11: GOVERNING LAW AND JURISDICTION: 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. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any such dispute or claim.