Capture Ltd - Terms & Conditions

Version 1.9

Effective from April 1st 2024

These are the terms and conditions (“Conditions”) of Capture Limited, a company registered in England and Wales with company number 03669825 whose registered office is at Capture Limited

C/O James Cowper Kreston, 8th Floor South, Reading Bridge House, George Street, Reading, Berkshire, RG1 8LS (“Capture”).

1        Definitions and Interpretation

The definitions and rules of interpretation in this clause apply in these Conditions.

1.1       Definitions:

1.2    References to clauses and schedules are to the clauses and schedules of these Conditions and references to paragraphs are to paragraphs of the relevant schedule.

1.3       Clause, schedule and paragraph headings shall not affect the interpretation of the Conditions.

1.4       The schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the schedules.

1.5       If there is an inconsistency between any of the provisions in the documents comprising the Agreement the order of precedence shall be the Order Confirmation, the main body of these Conditions (including any document referred to in it) and finally the schedules.

1.6     A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.7    A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.8        Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.9     Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.10    A reference to a particular statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.  For clarity, any reference to “applicable law” is a reference to each then-current law that is applicable, regardless of whether it was in force as at the date of the Agreement.

1.11      A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.12      A reference to writing or written includes email (provided the email is supported by a valid server delivery receipt or the recipient provides written confirmation that the email has been received).

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

2        Delivery and Acceptance

2.1       If Capture has agreed to provide Professional Services, Capture shall use commercially reasonable endeavours to perform these services in accordance with any timetable that may be set out in the Order Confirmation.  Capture and the Client shall use reasonable endeavours to meet the dates in the timetable.

2.2       On delivery of each Capture Deliverable to the Client, the Client shall review the Capture Deliverable to confirm that they function in conformance with the Specification .

2.3       If the Client does not provide any written comments within a five Business Day period described above, or if the Capture Deliverable is found to conform with the Specification, which ever is sooner, the Capture Deliverable shall be deemed accepted.  The date on which this occurs will be deemed to be the delivery date (“Delivery Date”).

2.4       Should the Client fail to provide any Client Deliverables within a reasonable timeframe or if the Client uses the Software for any commercial purpose, Capture reserves the right to deem the Service delivered.

2.5       While the Software may be configured or developed by Capture, Capture does not warrant that the operation of the Software will be uninterrupted or error-free. After the Delivery Date such Software will be maintained in accordance with the Maintenance and Support (in the case of the Hosted Services)Maintenance terms.

3        Platform Services

3.1       Capture shall perform the Platform Services in accordance with the relevant service levels as described in Support Schedule which shall apply with effect from the relevant Delivery Date.

3.2       In relation to Authorised (Support) Users:

3.2.1      the Client's access to the Support Services shall be limited to the number of individual Authorised Users detailed in the Order Confirmation;

3.2.2      the Client shall maintain a written list of current Authorised Support Users of the Software, and the Client shall provide such list to Capture as may be reasonably requested by Capture from time to time;

3.2.3      the Client shall ensure that each Authorised Support User (a) keeps a secure, strong password that is changed regularly and is unique for their use of the Software in accordance with Capture’s security policy as notified to the Client from time to time; and (b) keeps their password confidential;

3.2.4      Capture shall not have access to the Authorised Support Users’ passwords but may audit the number of Authorised Users and their use of the Software as required, doing so with reasonable prior notice;

3.2.5      if such audit reveals that passwords have been provided to individuals who are not Authorised Support Users, and without prejudice to Capture's other rights, Capture reserves the right to (a) require the Client to promptly disable such passwords and not issue any new passwords to such individuals; or (b) Capture shall be entitled to charge Fees for the additional users in line with the pricing outlined in the Order Confirmation document. Capture may not charge without advanced written notice to Client and shall give Client 10 days in which to cure any breach before charging additional fees;

3.2.6      the Client may allow any number of users to access the website Front End and Back Office facilities of the Software via the internet. The Client is fully responsible for controlling access to the Software including management of usernames and password strength that provide access to the Software.

3.3       Capture shall have the right to display a proprietary mark (such as “Powered by Capture”) containing a link to Capture’s website on any initial pages, log-in or sign-in pages or help pages displayed by the Software. The specific wording, location, size and colour of the proprietary marks shall be agreed between by the parties provided always that it shall be in keeping with the look and feel of the Client’s website.

3.4       Fair Use Policies

3.4.1      In addition to the requirement for the Client to report and pay for the appropriate number of Authorised Users, Capture operates a Fair Use Policy covering other aspects of the Services.  The Policy should be read in conjunction with the Agreement.  Further details are provided in the Fair Use Policy Schedule to this agreement.

4        Software Only Solutions

4.1       If Capture has agreed to provide software only solutions, specific terms will be applied which are available on request.  This will be added as a separate schedule to this agreement.

5        Client Data

5.1       The Client shall to the extent permitted by applicable law, own all rights, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Client Data.

5.2       Capture shall follow its Archiving Policy and associated procedures for Client Data as described in the Archiving Policy. In the event of any loss or damage to Client Data, that is properly archived in accordance with Capture’s Archiving Policy, except to the extent such Client Data constitutes personal data, the Client's sole and exclusive remedy against Capture shall be for Capture to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Capture in accordance with the Archiving Policy. Capture shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party engaged or authorized by the Client to process Client Data (except those third parties sub-contracted by Capture to perform Services related to Client Data maintenance and back-up for which Capture shall remain fully liable under clause 5.7).

5.3       Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

5.4       The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and Capture is the processor. Schedule Two sets out an example of the scope, nature and purpose of processing by Capture, the duration of the processing and the types of personal data and categories of data subject.  The parties agree to complete this schedule and attach to the Order Confirmation, as necessary.

5.5       Without prejudice to the generality of clause 5.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Capture and any going usage for the duration and purposes of the Agreement.

5.6       Without prejudice to the generality of clause 5.3, Capture shall, in relation to any Client Data processed in connection with the performance by Capture of its obligations under the Agreement:

5.6.1      process that Client data only on the basis described in this Agreement or in accordance with such other written instructions as the Client may give to Capture unless Capture is required by the laws of any member of the European Union or by the laws of the European Union applicable to Capture and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (“Applicable Laws”). Where Capture is relying on Applicable Laws as the basis for processing personal data, Capture shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Capture from so notifying the Client;

5.6.2      ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Client Data and against accidental loss or destruction of, or damage to, Client 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 (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).  Capture shall ensure that any person(s) authorised to process Client Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;;

5.6.3      not knowingly transfer any personal data outside of the European Economic Area and the United Kingdom unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:

5.6.3.1      the Client or Capture has provided appropriate safeguards in relation to the transfer;

5.6.3.2      the data subject has enforceable rights and effective legal remedies;

5.6.3.3      Capture complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

5.6.3.4      Capture complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data.

5.6.4      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;

5.6.5      notify the Client without undue delay on becoming aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Client Data (a “Security Incident”) and provide any and all information relating to such Security Incident as requested by Client immediately as it becomes available, including any information as reasonably required to assist Client in evaluating its obligations under any applicable law (including Data Protection Legislation) and notifying a Security Incident in accordance with applicable law;

5.6.6      at the written direction of the Client, delete or return all Client Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and

5.6.7      maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Client or the Client's designated auditor and immediately inform the Client if, in the opinion of Capture, an instruction infringes the Data Protection Legislation.

5.7       The Client consents to Capture appointing the third-party processor(s) named in a completed version of schedule 2Two to process personal data under the Agreement. Capture confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business and Capture shall be responsible for ensuring that these reflect the requirements of the Data Protection Legislation. As between the Client and Capture, Capture shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.

6        Capture's Obligations

6.1       Capture undertakes that the Services will be performed in accordance with the Specification and with reasonable skill and care.

6.2       The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to Capture's instructions or modification or alteration of the Software by any party other than Capture or Capture's duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, Capture will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or 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 1.1. Notwithstanding the foregoing, Capture does not warrant that the Software and Services will be free from Vulnerabilities or that the Client’s use of the Software and the Services will be uninterrupted or error-free.

6.3       The Agreement shall not prevent Capture from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services (for clarity, excluding any Material or other intellectual property of the Client) which are similar to those provided under the Agreement.

7        Client's Obligations

7.1       The Client shall:

7.1.1      provide Capture with:

7.1.1.1      all reasonably necessary co-operation in relation to the Agreement; and

7.1.1.2      all necessary access to such information as may reasonably be required by Capture;

in each and every case, in order to render the Services, including Client Data, security access information and software interfaces to the Client's other business applications;

7.1.2      provide such assistance from its personnel as may be reasonably requested by Capture from time to time.

7.1.3      appoint the Client Named Contact, who shall have the authority to contractually bind the Client on all matters relating to the Agreement. The Client shall use reasonable endeavours to ensure continuity of the Client Named Contact; but has the right to replace that individual from time to time where reasonably necessary in the interests of the Client’s business;

7.1.4      without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement; and

7.1.5      carry out all other Client responsibilities set out in the 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, Capture may adjust any agreed timetable as reasonably necessary.

7.2       In relation to the Software:

7.2.1      Capture hereby grants to the Client on and subject to the terms and conditions of the Agreement a non-exclusive, and subject to clause 23.1 non-transferable licence to allow Authorised Users to access the Software through the Hosting Services and to use the Software solely for the Client's business purposes;

7.2.2      the Client shall not store, distribute, introduce or transmit through the Hosting Services:

7.2.2.1      any Virus,

7.2.2.2      any Vulnerability; or

7.2.2.3      any Material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

7.2.3      the Client shall not use the Services:

7.2.3.1      to undertake online activities which do not comply with applicable consumer law;

7.2.3.2      to send “spam mail” (i.e. unsolicited mass communications);

7.2.3.3      in a manner which infringes third party rights in any proprietary material; or

7.2.3.4      so as to violate the security of any website or engage in the unauthorised decryption of protected material;

7.2.4      the rights provided under this clause 7 are granted to the Client only, and shall not be considered granted to any Group Company;

7.2.5      the Client shall not:

7.2.5.1      attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in these Conditions or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

7.2.5.2      attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

7.2.5.3      access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services; or

7.2.5.4      distribute, resell, licence or rent the Software or Hosting Services to any other person or organisation or otherwise commercially exploit them; or

7.2.5.5      subject to clause 23.1, transfer, temporarily or permanently, any of its rights under the Agreement, or

7.2.5.6      attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 7.2.5; and

7.2.6      the Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify Capture promptly of any such unauthorised access or use.

7.3       The Client is solely responsible for the accuracy, legality, currency and compliance of its Material and will be solely liable for false, misleading, inaccurate, infringing, illegal or other actionable Material contained or referred to therein.

7.4       The Client is responsible for maintaining the confidentiality and security of its internet account and use including use of its unique logon IDs.

7.5       The Client acknowledges and agrees that Capture may be required by a law enforcement agency to monitor the Client’s systems content and traffic and if necessary give evidence of the same together with use of the logon ID to support or defend any dispute or actionable cause or matter which arises in relation to the same, provided that, to the extent Capture is legally permitted to do so, Capture gives the Client as much notice of such actions as possible and, where such notice is not prohibited and is given in accordance with this clause 7.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

7.6       Subject to clauses 7.6 and 15.10.2, the Client shall indemnify Capture fully against all liabilities, costs and expenses which Capture may incur as a result of:

7.6.1      work done in accordance with the Client’s instructions in hosting of the Software or any other Client system; and

7.6.2      any breach of the terms of this clause 7.

8        Non-Solicitation

8.1       In order to protect Capture’s legitimate business interests the Client covenants with Capture for itself and as agent for each Group Company that it shall not (and shall procure that no member of the Client’s Group shall) (except with Capture’s prior written consent:

8.1.1      attempt to solicit or entice away; or

8.1.2      solicit or entice away;

8.1.3      from Capture’s employment or service the services of any Restricted Person being defined as a current Capture employee or contracted third party consultant other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of Capture;  or

8.1.4      deliberately employ or engage or otherwise facilitate the employment or engagement of any Restricted Person.

8.2       The Client shall be bound by the covenant set out in clause 8.1 during the term of the Agreement, and for a period of 6 months after termination of the Agreement.

8.3       If the Client commits any breach of this clause, the Client shall, on demand, pay to Capture a sum equal to one year's basic salary or the annual fee that was payable by Capture to the Restricted Person plus the recruitment costs incurred by Capture in replacing such person. The parties confirm that these liquidated damages are reasonable and proportionate to protect Capture’s legitimate interest in performance.

9        Fees and Payment

9.1       Subject to clause 9.3, the Fees shall be set out in the Order Confirmation.

9.2       Periodic Fees will commence on the Effective Date.

9.3       Capture may change any Periodic Fees after giving the Client 30 days’ written notice. Unless otherwise stipulated in the Order Confirmation, Capture’s annual price increases shall be automatically increased to a maximum in line with the UK Consumer Prices Index (CPI) in the preceding 12 months.  Any increases above this level are possible, if agreed mutually between the partners.

9.4       If Capture provides services that are not covered by the Fees, Capture shall be entitled to make addition charges for the provision of the services (“Additional Charge”) to the Client at its then prevailing rate card. The following are examples of where Additional Charges would apply: site visits, training, help requests covered in the help files and help requests, the responses to which have already been communicated in writing, technical support relating to equipment or software or infrastructure which is not proprietary to Capture or under Capture’s control, system security, storage, overage on connectivity, support, fixed time based services and backup and archiving, additional development, additional software modules.

9.5       The Client shall pay the Fees and any Additional Charges, and shall reimburse Capture for all actual, reasonable travel expenses including airfare, hotel and meals incurred by Capture in performance of the Services, such expenses to be agreed in advance by the parties.

9.6       All Fees, Additional Charges and expenses are exclusive of value added tax, which shall be added to Capture's invoice(s) at the appropriate rate and must be paid in pounds sterling.

9.7       Capture does not accept payment by cheque or cash. Invoices must be paid electronically and fees payable on a periodic basis must be paid by direct debit, standing order or bank transfer (using such payment details as Capture notifies to the Client from time to time).  The Client also agrees to assist Capture in setting up the agreed payment method.".

9.8       Capture shall invoice the Client at the intervals detailed in the Order Confirmation.

9.9       Each invoice is due and payable 30 days after the invoice date, unless otherwise agreed

9.10    The Client shall provide Capture with complete and accurate billing and contact information at all times during the term of the Agreement.

9.11    If Capture has not received payment within thirty days after the due date, and without prejudice to any other rights and remedies of Capture:

9.11.1    Capture shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.11.2    interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the Bank of England base rate from time to time (but at 8% a year for any period when that base rate is below 0%), commencing on the due date and continuing until fully paid, whether before or after judgment.

9.11.3    Unless otherwise stated in the Order Confirmation, all pricing will be in GBP.

9.11.4    For any prepaid Service, the credit balance will be held for six months from invoice.  Capture reserves the right to reset any unused credit should these not be used in the six months or any other timeframe or condition as specified in an Order Confirmation or Statement of Work.

10     Incidents

10.1    The Client must, in every case, log all errors or problems on Capture’s on-line support reporting system as soon as possible.  Details are provided in the Support Schedule.

11     Change Control

11.1    If either party requests a change to the scope or execution of the Services, Capture shall, within a reasonable time, provide a written estimate to the Client of:

11.1.1    the likely time required to implement the change;

11.1.2    any variations to the Fees arising from the change;

11.1.3    the likely effect of the change on the Project Plan; and

11.1.4    any other impact of the change on the terms of the Agreement.

11.2    If Capture requests a change to the scope of the Services, the Client shall discuss such changes with Capture in good faith.

11.3    If the Client wishes Capture to proceed with the change, Capture has no obligation to do so unless and until both parties have signed a document confirming the agreed variations to the charges, the Project Plan and any other relevant terms of the Agreement to take account of the change.

12     Proprietary Rights

12.1    The Client acknowledges and agrees that Capture and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, the Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

12.2    Capture confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.

13     Confidentiality and Compliance With Policies

13.1    Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not include information that.

13.1.1    is or becomes publicly known other than through any act or omission of the receiving party; or

13.1.2    was in the other party's lawful possession before the disclosure; or

13.1.3    is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

13.1.4    is independently developed by the receiving party, which independent development can be shown by written evidence; or

13.2    Subject to clause 13.4, each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.

13.3    Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

13.4    A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

13.5    The Client acknowledges that information about the Software, Services, the results of any performance tests of the Software, Capture’s general business activities including but not limited to its staff, contractors, partners and other clients and its business activities in relation to the Client shared in any form including orally, in digital or paper form all constitute Capture's Confidential Information.

13.6    Capture acknowledges that the Client Data is the Confidential Information of the Client.  The parties acknowledge that the terms of this Agreement also form part of the Confidential Information of both parties.

13.7    No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

13.8    The above provisions of this clause 13 shall survive termination of the Agreement, however arising.

14     Indemnity

14.1    Subject to Clause 15.10.2 the Client shall defend, indemnify and hold harmless Capture, its officers, directors and employees, agents and subcontractors against third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (a) any infringement or alleged infringement or misappropriation of any third party’s intellectual property rights resulting solely from Client's use of the Software or Services, provided that Capture has provided the Software and Services in accordance with the Client’s instructions in hosting of the Software or any other Client system, (b) the Client’s or its employees’, agents’, or sub-contractors’ breach of any provision of this Agreement or any warranty, covenant or representation contained herein and (c) the Client’s or its employees’, agents’, or sub-contractors’ fraud, gross negligence, wilful misconduct, or failure to comply with applicable laws and regulations in the performance of this Agreement, provided that:

14.1.1    the Client is given prompt notice of any such claim;

14.1.2    Capture provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and

14.1.3    the Client is given sole authority to defend or settle the claim.

14.2    Subject to Clause 15.2.2. Capture shall defend the Client, its officers, directors and employees against any claim that the use of Software by the Client in accordance with the Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in final or unappealed judgment or settlement of such claims, provided that:

14.2.1    Capture is given prompt notice of any such claim;

14.2.2    the Client provides reasonable co-operation to Capture in the defence and settlement of such claim, at Capture's expense; and

14.2.3    Capture is given sole authority to defend or settle the claim.

14.3    In the defence or settlement of the claim, Capture may obtain for the Client the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the Agreement without liability to the Client. Capture shall have no liability if the alleged infringement is based on:

14.3.1    a modification of the Software by anyone other than Capture; or

14.3.2    the Client's use of the Software in a manner contrary to the instructions given to the Client by Capture; or

14.3.3    the Client's use of the Software after notice of the alleged or actual infringement from Capture or any appropriate authority.

14.4    The foregoing and clause 15.5.2 state the Client’s sole and exclusive rights and remedies, and Capture’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

15     Limitation of Liability

15.1    This clause 15.1 to clause 15.5 sets out the entire financial liability of Capture (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

15.1.1    arising under or in connection with the Agreement;

15.1.2    in respect of any use made by the Client of the Services, the Software, the Capture Deliverables or any part of them; and

15.1.3    in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

15.2    Except as expressly and specifically provided in the Agreement:

15.2.1    the Client assumes sole responsibility for results obtained from the use of the Software and the Services by the Client, and for conclusions drawn from such use. Capture shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Capture by the Client in connection with the Services, or any actions taken by Capture at the Client's direction; and

15.2.2    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 the Agreement.

15.3    Nothing in the Agreement excludes the liability of Capture:

15.3.1    for death or personal injury caused by Capture's negligence; or

15.3.2    for fraud or fraudulent misrepresentation.

15.4    The Service Levels state the Client's full and exclusive right and remedy, and Capture's only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.

15.5    Subject to clause 15.3 and clause 15.4:

15.5.1    Capture shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under the Agreement; and

15.5.2    Capture's total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the lower of (a) the Fees paid for the Services during the twelve months preceding the date on which the claim arose and (b) the prevailing limit specified in Capture's professional indemnity insurance policy.

15.6    The Client agrees that the allocation of risk that is defined in this clause is reflected in the level of the Fees charged by Capture, in the fact that the Software cannot be tested in every possible combination of circumstances and the fact that it is not in Capture’s control how the Client uses the Software and the Services.

15.7    This clause 15.7 to clause 15.11 sets out the entire financial liability of Client (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Capture:

15.7.1    arising under or in connection with the Agreement;

15.7.2    in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

15.8    Except as expressly and specifically provided in the Agreement 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 the Agreement.

15.9    Nothing in the Agreement excludes the liability of Client:

15.9.1    for death or personal injury caused by Client's negligence; or

15.10  for fraud or fraudulent misrepresentation.

15.11  Subject to clause 15.3:

15.12  Client shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under the Agreement; and

15.13  Client's total aggregate liability in contract (including in respect of the indemnities at clauses 7.5  14.1), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the lower of (a) the Fees paid for the Services during the six months preceding the date on which the claim arose and (b) the prevailing limit specified in Client's professional indemnity insurance policy.

16     Term and Termination

16.1    Unless otherwise terminated as provided in this clause 16, the Agreement shall commence on the Effective Date and shall continue for the Minimum Period, after which it shall automatically renew for successive periods of one year.

16.2    The Client may terminate the Agreement.

16.2.1    for convenience by giving not less than 90 days’ written notice to take effect on the third or any subsequent anniversary of the Effective Date.

16.2.2    the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

16.3    Capture may terminate the Agreement for convenience by giving not less than 90 days’ written notice to take effect on any anniversary of the Effective Date.

16.4    Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

16.4.1    the other party commits a Material Breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

16.4.2    the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;

16.4.3    the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

16.4.4    the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

16.4.5    a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

16.4.6    an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);

16.4.7    the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

16.4.8    a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

16.4.9    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;

16.4.10  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 16.4. to clause 16.4. (inclusive); or

16.4.11  the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.5    On termination of the Agreement for any reason:

16.5.1    all licences or access to the Software granted under the Agreement shall immediately terminate;

16.5.2    each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;

16.5.3    Capture is not obligated to provide the Client with Services in migrating to a new supplier (Transition Services).  Should Services be required by the Client Capture can offer Transition Services, the fees for which will be agreed between the parties therefore;  Capture may destroy or otherwise dispose of any of the Client Data in its possession unless Capture receives, no later than thirty days before the effective date of the termination of the Agreement, a written request, in accordance with clause 5.6.6, for the delivery to the Client of the then most recent back-up of the Client Data;

16.5.4    Capture shall use reasonable commercial endeavours to provide the back-up and any transition services to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and any fees due under clause 16.5.3. The Client shall pay all reasonable expenses incurred by Capture in returning or disposing of Client Data; and

16.5.5    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.

16.5.6    Should a client require use of the Software beyond the Termination Date for example due to their failure to remove assets, Capture will continue to charge Fees at the contractually agree rate on a rolling 30 day basis.

17     Export

17.1    Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

17.2    Each party undertakes:

17.2.1    contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out in clause 17.117.1; and

17.2.2    if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

18     Force Majeure

18.1    Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Capture or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, pandemic, civil commotion, malicious damage including denial of service attacks, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate the Agreement by giving 30 days' written notice to the other party. The affected party shall use all reasonable endeavours to mitigate the impact of the force majeure event on performance and also resume performance as soon as possible.

19     Waiver

19.1    A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

19.2    Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

20     Rights and Remedies

20.1    Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21     Severance

21.1    If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.

21.2    If any provision or part-provision of the Agreement is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

22     Entire Agreement

22.1    The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

22.2    Each party acknowledges that in entering into the 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 the Agreement.

22.3    Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

22.4    Nothing in this clause shall limit or exclude any liability for fraud.

23     Assignment

23.1    The Client shall not, without the prior written consent of Capture, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Agreement.

23.2    Capture may at any time assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Agreement.

24     No Partnership or Agency

24.1    Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

25     Publicity

25.1        Unless otherwise agreed in writing, the Client grants to Capture a non-exclusive licence to use its name in any promotional material, marketing material, similar material or announcement.

26     Variation

26.1    Capture reserve the right to vary these contract terms giving no less than 30 days notice.

27     Third Party Rights

27.1    The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

28     Notices

28.1    Any notice required to be given under the Agreement shall be in writing and shall be 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 the Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in the Order Confirmation.

28.2    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9:00am on the first Business Day following delivery). A correctly addressed notice 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 of post. A notice sent by email shall be deemed to have been received at the time of sending (as shown by the timed server delivery receipt obtained by the sender).

29     Governing Law

29.1    The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

30     Jurisdiction

30.1    The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

31     Survival

31.1      Any provision of this Agreement that logically would be expected to survive the termination or expiration of this Agreement will survive such termination or expiration, including Sections 13, 14, 15 and 18-31.