1. Definitions and Interpretation
1.1 Unless the context requires otherwise, in these Terms and Conditions and in an Order the following definitions shall apply:
|“Agreement“||this software as a service agreement between Knowa and the Client made up of an Order, these Terms and Conditions and any documents expressly referred to in either of them, and any amendments to that contract from time to time.|
|Authorised Users||means (i) those employees, agents and independent contractors of the Client and (ii) the Client’s customers their respective employees, agents and independent contractors, in each case as are authorised in terms of this Agreement to use the Services.|
|“Business Days”||Mondays to Fridays, excluding English Bank and public holidays.|
|“Business Hours”||09:00 to 18:00 London time on Business Days.|
|“Charges“||the periodic charges payable by the Client for the Services, as set out in an Order.|
|“Client”||means the person or entity identified as such in the Order.|
|“Client Data”||means any data provided by the Client and its Authorised Users to Knowa under the Agreement.|
|“Confidential Information“||any information, data, documentation and other material of any kind (including Client Data and Client Personal Data) disclosed by either party to the other party at any time before or during the Term (whether in writing, orally or otherwise) that at the time of disclosure:
(i) is marked as “confidential”; or
(ii) should reasonably be understood to be confidential,
and shall include the disclosing party’s affairs, customers, clients, suppliers, financial performance, plans, intentions, market opportunities, operations, processes, product information (including, for the avoidance of doubt, the Knowa Modules), know-how, designs, trade secrets, technology, software, presentations, analyses and other material prepared in relation thereto by the disclosing party.
|“Effective Date”||has the meaning given to it in the Order.|
|“End User”||means a user who has signed up to use the Knowa Services under the Agreement of the Client.|
|“End User Personal Data”||means any Personal Data collected from the End User to provide the functionality of the Website and the Knowa Services to the Client.|
|“Force Majeure Event”||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.|
|“Intellectual Property Rights”||patents, rights in inventions, know how, show how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, semiconductor topography rights, trademarks and service marks, trade names, business names, brand names, get up, logos, domain names and URLs, rights in unfair competition, goodwill and rights to sue for passing off and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them and all rights to sue for any past or present infringement of them) and all rights or forms of protection having equivalent or similar effect in any jurisdiction.|
|“Knowa Modules”||1. the Discussion Management Module;
2. the Document Management Module;
3. the Meeting Pack Module,
in each case as further described in the Specification.
|“Knowa Services”||means access to the functionality of such Knowa Module or Knowa Modules as is or are specified in an Order.|
|“Order”||means the order by the Client for the supply of Services that is attached to this Agreement.|
|“Personal Data”||has the meaning given to it in the EU General Data Protection Regulation (GDPR) as it applies in the UK and as amended by the Data Protection Act 2018.|
|“Pilot Period”||has the meaning given to it in the Order.|
|“Pilot Use Fee”||has the meaning given to it in the Order.|
|“Platform”||Knowa’s proprietary web portal used to provide the Knowa Services.|
|“Processing”||has the meaning given to it in the EU General Data Protection Regulation (GDPR) as it applies in the UK and as amended by the Data Protection Act 2018.|
(i) the Set Up Services;
(ii) the Knowa Services; and
(iii) the Support Services,
or, as required by the context, any one or more of them.
|“Set Up Services”||means:
(i) initial configuration of the Platform for the Client and its Authorised Users;
(ii) such other implementation services as are required to enable the Client and its Authorised Users to access the Platform and receive the Knowa Services,
in each case as further described in the Order or as may be agreed by the parties from time to time and subject to the terms and conditions of this Agreement.
|“Set Up Services Fee”||means the one-off charge payable by the Client for the Set Up Services (if applicable), as set out in an Order.|
|“Specification”||means the Discussion Management Module, Document Management Module, and Meeting Pack Module, where:
Discussion Management Module means Knowa’s proprietary software as a service solution which helps users discuss and share information within a ‘Space’ belonging to their organisation. Discussions exist within Groups, which determine who can access and participate. Spaces from different organisations can connect to each other to form a third ‘Connected’ Space. Users can also have one-to-one or one-to-many private chats if they share a Group within any Space; and
Document Management Module means Knowa’s proprietary software as a service solution which allows users to store documents within Groups and share documents within discussions and chats; and
Meeting Pack Module means Knowa’s proprietary software as a service solution which allows users to create and build meeting agendas, upload meeting papers, and publish meeting packs for attendees to view and annotate.
|“Support Services”||has the meaning given to it in clause 5.1.|
|“Term“||has the meaning given to it in clause 2.1.|
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the Commencement Date.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
1.10 In case of a conflict or inconsistency between these Terms and Conditions and any provision in an Order, the relevant provisions of the Order prevail to the extent necessary to remedy the conflict or inconsistency.
2.1 Subject to earlier termination in accordance with clause 16, the Agreement shall commence on the Commencement Date and shall continue in force for the Pilot Period and the Initial Service Period (whichever is later). Thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”) unless:
(a) the Client notifies Knowa of termination in writing not less than 10 days prior to the end of Pilot Period; in which case this Agreement shall terminate upon expiry of the Pilot Period;
(b) either party notifies the other party of termination, in writing, not less than three (3) months before the end of the Initial Service Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the Initial Service Term or applicable Renewal Period; or
(c) the Agreement is otherwise terminated in accordance with the provisions of this Agreement,
and the Initial Service Period together with any subsequent Renewal Periods shall constitute the Term.
3. Pilot Period and Set Up Services
3.1 Subject to clause 3.3 and the Client paying the Set Up Services Fee (if applicable), Knowa shall provide the Set Up Services to the Client.
3.2 Subject to the Client fulfilling its obligations under clause 3.3, Knowa shall use all commercially reasonable endeavours to ensure that the Set Up Services are completed in a timely and efficient manner.
3.3 The Client agrees and acknowledges that the provision of the Set Up Services is dependent on the Client arranging an onboarding session with Knowa. The Client must agree and arrange the onboarding session with Knowa in a timely and efficient manner and provide Knowa with all assistance and access to its premises and facilities as are reasonably required by Knowa to provide the Set Up Services.
3.4 If the Order provides for a Pilot Period for the Knowa Services then, subject to the Client paying the Pilot Use Fee (if applicable), Knowa hereby grants to the Client a licence to permit the Authorised Users to access and use the Knowa Services on a trial basis during the Pilot Period subject to all restrictions, terms and conditions on such access as are set out in this Agreement (including, for the avoidance of doubt, clauses 4 and 6) and the Order.
3.5 Notwithstanding any other provision of this Agreement to the contrary, Knowa may terminate the Pilot Period in its sole discretion at any time without incurring liability to the Client. In such circumstances, the provisions of clause 17 (Effects of Termination) shall apply.
4. Knowa Services
4.1 Subject to the Client paying the Charges in accordance with clause 10.2, the restrictions set out in this clause 4 and clause 6 and the other terms and conditions of this Agreement, Knowa (i) hereby grants to the Client a non-exclusive, non-transferable, without the right to grant sublicences, licence to permit the Authorised Users to access and use the Knowa Services solely for the Client’s internal business purposes during the Initial Service Period and any Renewal Period (as applicable) and (ii) shall make the Knowa Services available substantially in accordance with the service levels set out in Exhibit C to this Agreement.
4.2 The Client shall, and shall ensure that the Authorised Users shall, use all reasonable endeavours, including all reasonable security measures relating to its account access details, to ensure that no unauthorised person may gain access to the Knowa Services.
4.3 The Client shall not, and shall ensure that the Authorised Users shall not, use the Knowa Services:
(a) in any way that is unlawful, discriminatory, illegal, fraudulent or harmful (to any person or property);
(b) in any way that causes, or may cause, damage to the Knowa Services or to the Platform, or impairment of the availability or accessibility of the Knowa Services or
(c) in connection with any unlawful, discriminatory, illegal, fraudulent or harmful (to any person or property) purpose or activity.
and Knowa reserves the right, without liability or prejudice to its other rights relating to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
4.4 The Client shall not, and shall ensure that the Authorised Users shall not (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 Knowa Services and/or Platform (as applicable) in any form or media or by any means;
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Knowa Services and/or Platform;
(c) access all or any part of the Knowa Services and/or Platform in order to build a product or service which competes with the Knowa Services and/or the Platform;
(d) use the Knowa Services and/or Platform to provide services to third parties;
(e) subject to clause 21, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Knowa Services and/or Platform available to any third party except the Authorised Users,
(f) attempt to obtain, or assist third parties in obtaining, access to the Knowa Services and/or Platform, other than as provided under this clause 4; or
(g) introduce or permit the introduction of, any viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs into Knowa’s network and information systems.
4.5 The Client undertakes that:
(a) it will not allow or suffer any use of the Services other than by an Authorised User;
(b) it will ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be directly responsible for any Authorised User’s breach of this Agreement;
(c) it will ensure that each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep their password confidential;
(d) it will notify Knowa in writing within 5 Business Days’ if any Client customer ceases to be an Authorised User; and
(e) it shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Knowa.
4.6 For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.7 Knowa may suspend the provision of the Services (in whole or in part) if any amount due to be paid by the Client to Knowa under the Agreement is overdue, and Knowa has given to the Client at least five (5) Business Days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
5. Support Services and Training
5.1 Subject to the Client paying the Charges in accordance with clause 10.2 and if specified in the Order, Knowa shall provide the Client with helpdesk support in relation to the Knowa Services (“Support Services”) during Business Hours via the contact method(s) specified in the Order.
5.2 Knowa will provide the Client with group training sessions on the use of the Knowa Services if and to the extent specified in the Order. Unless otherwise agreed by the parties, all training will be provided by Zoom or an equivalent tool.
6. Client obligations
6.1 The Client agrees that it shall provide a point person, to be initially identified in the Order, with whom Knowa’s customer success team can liaise to discuss how to accelerate adoption of the Knowa Services.
6.2 The Client must provide to Knowa, or procure for Knowa, such:
(a) co-operation, support and advice;
(b) access to information and documentation; and
(c) access to the Client and/or its Authorised Users’ computer hardware, software, networks and systems,
in each case only to the extent reasonably necessary to enable Knowa to perform its obligations under the Agreement.
6.3 The Client shall:
(a) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(b) carry out all Client obligations set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Knowa may adjust any agreed timetable or delivery schedule as reasonably necessary;
(c) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(d) ensure that its network and systems comply with the relevant specifications provided by Knowa from time to time in order to receive the Services; and
(e) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Platform and Knowa’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
7. Client Data
7.1 The Client warrants to Knowa that the use of the Client Data by Knowa as permitted by and in compliance with the terms of this Agreement will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against Knowa,
in each case in any jurisdiction and under any applicable law.
8 Data Protection
8.1 Each party undertakes to comply with the terms and conditions relating to personal data processing set out in Schedule 1 (Data Processing).
9 Intellectual Property Rights
9.1 Except as expressly provided herein, nothing in the Agreement shall operate to assign or otherwise transfer any Intellectual Property Rights from Knowa to the Client, or from the Client to Knowa.
9.2 The Client (or its licensors) retains ownership of all Intellectual Property Rights in the Client Data.
9.3 Knowa (or its licensors) retains ownership of all Intellectual Property Rights in the Platform and the Services. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Platform and/or the Services.
10.1 With effect from the Effective Date (unless agreed otherwise) Knowa shall issue invoices for the Charges to the Client either:
(a) annually in advance; or
(b) quarterly in advance, or
(c) monthly in advance,
as specified in the Order.
10.2 The Client must pay the Charges to Knowa by bank transfer within fourteen (14) days following the issue of an invoice in accordance with clause 10.1.
10.3 The Charges are exclusive of UK value added tax (VAT) or any other applicable sales tax, which will be added, as may be appropriate, to the Charges and payable by the Client to Knowa.
10.4 The Charges will increase in line with CPI each year on the anniversary of the Effective Date.
10.5 If Knowa has not received payment of Charges within fourteen (14) days after the due date for payment in accordance with clause 10.1, Knowa may, without prejudice to its other rights (whether under the Agreement or otherwise):
(a) charge the Client interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time (which interest will accrue daily), commencing on the due date and continuing until fully paid, whether before or after judgment); and/or
(b) without incurring any liability to the Client, disable the Client’s password, account and access to all or part of the Services and the Client shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
10.6 All amounts and Charges stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to the Knowa’s invoice(s) at the appropriate rate.
11.1 Each party (“receiving party”) shall:
(a) keep the Confidential Information of the other party (“disclosing party”) strictly private and confidential;
(b) not disclose the disclosing party’s Confidential Information to any third party without the disclosing party’s prior written consent, or as otherwise permitted under the terms of this Agreement, 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 disclosing party’s Confidential Information as the receiving party uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the disclosing party’s Confidential Information.
11.2 This clause 11 imposes no obligations upon the receiving party with respect to disclosing party’s Confidential Information that:
(a) is known to the receiving party 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 receiving party; or
(c) is obtained by the receiving party from a third party in circumstances where the receiving party has no reason to believe that there has been a breach of an obligation of confidentiality.
11.3 The restrictions in this clause 11 do not apply to the extent that any Confidential Information of the disclosing party 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 receiving party or its parent or any associated company on any recognized stock exchange.
11.4 The provisions of this clause 11 shall survive termination of the Agreement, however arising, and shall continue to apply to any Confidential Information which remains in the possession of a receiving party.
12 Warranties and Indemnities
12.1 Knowa warrants to the Client that:
(a) Knowa has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement;
(b) Knowa will comply with all applicable legal and regulatory requirements applying to the exercise of Knowa’s rights and the fulfilment of Knowa’s obligations under the Agreement;
(c) it shall provide the Services with a commercially reasonable degree of skill and care;
(d) The Knowa Services shall in all material respects comply with the Specification so far as is reasonably and commercially practicable;
(e) it has taken and shall continue to take all commercially reasonable steps to ensure that the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(f) the Platform will incorporate security features reflecting the requirements of good industry practice.
12.2 Subject to clause 14, Knowa agrees to indemnify and hold the Client harmless against any loss, liability, damage, cost and expense (including reasonable legal fees and expenses) incurred by the Client as a result of any bona fide claim made or brought against the Client by a third party alleging that the Knowa Services or the Platform, or the use thereof by the Client, infringes the Intellectual Property Rights of such third party.
12.3 If Knowa reasonably determines, or any third party alleges that the use of the Knowa Services by the Client in accordance with the Agreement infringes any person’s Intellectual Property Rights, Knowa may at its own cost and expense:
(a) modify the Knowa Services in such a way that they no longer infringe the relevant Intellectual Property Rights;
(b) procure for the Client the right to use the Knowa Services in accordance with the Agreement; or
(c) if Knowa reasonably concludes that neither of the options set out in (a) or (b) are commercially or technically practicable, terminate the Agreement and refund the Client all Charges previously paid in respect of the Knowa Services that relate to a period after the date of any infringement or alleged infringement.
12.4 The Client warrants to Knowa that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
12.5 Each party warrants to the other that:
(a) it has not offered, given or agreed to give, and shall not at any time offer, give or agree to give, any gift or consideration of any kind as inducement or reward for doing or agreeing not to do anything; and
(b) it has not committed, and shall not at any time commit, any offence under the Bribery Act 2010.
12.6 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.
12.7 The Client shall defend, indemnify and hold harmless Knowa, its officers, directors and employees against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s or its Authorised Users breach of this Agreement, provided that:
(a) the Client is given prompt notice of any such claim;
(b) Knowa provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
(c) the Client is given sole authority to defend or settle the claim.
13 Acknowledgements and warranty limitations
13.1 The Client acknowledges that, despite all reasonable commercial endeavours, complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, Knowa gives no warranty or representation that access to the Knowa Services will be uninterrupted or that the Knowa Services will be wholly free from defects, errors and bugs.
13.2 The Client acknowledges that, despite all reasonable commercial endeavours, complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, Knowa gives no warranty or representation that the Knowa Services will be entirely secure.
13.3 Except to the extent expressly provided otherwise in the Agreement, Knowa does not warrant or represent that the Knowa Services or the use of the Knowa Services by the Client will be suitable for the Client’s purposes or will provide the Client with any return on investment, cost saving or other specific result or outcome.
14 Limitations and exclusions of liability
14.1 Except as expressly and specifically provided in this Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services and the Platform by the Client, and for conclusions drawn from such use. Knowa shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Knowa by the Client in connection with the Services, or any actions taken by Knowa at the Client’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Platform are provided to the Client on an “as is” basis.
14.2 Nothing in the Agreement will limit or exclude Knowa’s liability to the Client in respect of:
(a) Knowa’s fraud or fraudulent misrepresentation;
(b) Knowa’s gross or wilful negligence in the performance of its obligations under this Agreement; or
(c) death or personal injury caused by Knowa’s negligence.
14.3 The limitations and exclusions of liability set out in this clause 14 and elsewhere in the Agreement:
(a) are subject to clause 14.1; 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.
14.4 Without prejudice to the generality of Clause 14.5, Knowa shall not be liable to the Client in respect of:
(a) any losses arising out of a Force Majeure Event;
(b) any loss of profits or anticipated savings;
(c) any loss of revenue or income;
(d) any loss of use or production;
(e) any loss of business, contracts or opportunities;
(f) any loss or corruption of any data, database or software (subject to Knowa having complied with its obligations under Clause 12.1(e) and Schedule 1 (Data Processing)), or
(g) any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Knowa Services and Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
whether or not such losses or loss would also fall within clause 14.5.
14.5 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
14.6 Subject to clauses 14.1 to 14.5, the total aggregate liability of each party to the other party under the Agreement in contract (including in respect of the indemnity at clause 12.3), 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 not exceed the higher of (i) two (2) times the total amount paid and payable by the Client to Knowa under the Agreement in the 12 month period preceding the commencement of the event or events or (ii) the total amount paid and payable by the Client to Knowa as at the date the claim arose.
15 Force Majeure Event
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2 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.
15.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take commercially reasonable steps to mitigate the effects of the Force Majeure Event.
16.1 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits any material breach of the Agreement which, in the case of a breach which is remediable, is not remedied within thirty (30) days of the date on which the other party is given written notice requiring the breach to be remedied.
16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or 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 material part of the assets of the other party; or
(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 reorganization where the resulting entity will assume all the obligations of the other party under the Agreement).
17 Effects of termination
17.1 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, 10, 11, 12, 14, 17, 18, 21, 22, 23, 24, 25, 26 and 27.
17.2 The termination of the Agreement shall not affect the accrued rights of either party.
17.3 Within 30 days following the termination of the Agreement for any reason:
(a) unless the Agreement is terminated by the Client pursuant to clause 16.1 or clause 16.2, the Client must pay to Knowa any Charges in respect of Services provided to the Client before the termination of the Agreement;
(b) unless the Agreement is terminated by Knowa pursuant to clause 16.1 or clause 16.2, Knowa shall refund to the Client any Charges paid by the Client to Knowa in respect of Services that were to be provided to the Client after the termination of the Agreement;
(c) all licences granted under this Agreement shall immediately terminate and the Client and all Authorised Users shall immediately cease all use of the Services;
(d) Knowa may destroy or otherwise dispose of any of the Client Data in its possession; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
18 Continued Access to the Services
18.1 Knowa shall use reasonable endeavours to enter into direct licences with the Client’s customers in order to ensure those customers’ continued access to the Services on substantially equivalent terms and conditions to those set out in this Agreement in the event that:
(a) this Agreement is terminated and the relevant Client customer was an Authorised User as at the date of termination (except where such termination was due to the material breach of the relevant Authorised User); or
(b) the relevant customer otherwise ceases to be an Authorised User by virtue of no longer being a customer of the Client.
19 Marketing and Publicity
Save with the written consent of the other party and subject always to clause 11 (Confidentiality), each party may refer to the other party in its marketing materials and press releases, as well as on its website, but (for the avoidance of doubt) neither party may make reference to the terms of the Agreement.
20 Notices and Consents
20.1 Any notice or consent from one party to the other party under the Agreement must be given by one of the following methods (using the relevant contact details set out in the Order):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received two Business Days following posting; or
(c) sent by email using, in the case of Knowa, will@Knowa.co or, in the case of the Client, the email address set out in the Order,
provided that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next beginning after the stated time.
Knowa may subcontract any of its obligations under the Agreement, provided that Knowa shall remain responsible to the Client for the performance of any sub-contracted obligations.
The Client must not assign, transfer or otherwise deal with its contractual rights and/or obligations under the Agreement without the prior written consent of Knowa, such consent not to be unreasonably withheld or delayed.
23 No waivers
23.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
23.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
24.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
24.2 If any unlawful and/or unenforceable provision of the Agreement 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.
25 Third party rights
25.1 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party other than is provided in clause 25.2.
25.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply save in relation to the parent and affiliated companies of Knowa.
26.1 The Agreement may not be varied except in accordance with clause 26.2.
26.2 The Agreement may be varied by means of a written document signed, either personally or by electronic signature, by or on behalf of each party.
27 Entire agreement
27.1 The Agreement shall constitute the entire agreement between the parties in relation to its subject matter, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
27.2 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.
28 No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
29 Law and jurisdiction
29.1 The Agreement and all disputes or claims arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
29.2 Any disputes relating to the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales.