Forbury legal terms
This is version 23.01, updated on 24th May 2023.
1. Definitions and interpretation
1.1 The following terms contained in the Agreement shall have the meanings set out below, unless the context otherwise requires:
“Affiliate” includes in relation to either party each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party;
“Agreement” means together the Order Form, these Legal Terms, and any other order for services that the Parties agree shall be subject to these Legal Terms (as varied from time to time in accordance with these Legal Terms);
“Applicable Laws” means all applicable laws, statutes, regulation of any relevant jurisdiction where the Software and Services are provided from, as amended and in force from time to time;
“Authorised Users” means those employees, agents, consultants, representatives, advisers and contractors of the Customer who are authorised by the Customer to use the Software, up to the maximum number set out in the Order Form (if any);
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Confidential Information” means information in any form which is expressed to be confidential or which might reasonably be regarded as confidential in nature, not including information to the extent it: (a) was already lawfully known to the receiving Party at the time of the disclosure; (b) became lawfully known to the receiving Party independently; or (c) is in, or comes into, the public domain other than by wrongful use of or disclosure by the receiving Party;
“Coyote Support Services” means any frontline support services provided by Coyote, as detailed in Schedule 1;
“Customer” means the customer whose details are set out in the Order Form;
“Customer Materials” means any of images, plans, data, materials or documentation that are supplied to Coyote or Forbury by or on behalf of the Customer;
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
“Effective Date” means the date set out on the Order Form;
“Forbury” means Forbury Property Valuation Solutions (UK) Ltd incorporated and registered in England and Wales with company number 13075964 whose registered office is at 10 John Street, London, United Kingdom, WC1N 2EB;
“Fees” means the On-Going Fees, and any Implementation Fees set out in the Order Form;
“Implementation Fees” means the fees payable by the Customer for the Implementation Services, the amount of which is set out in the Order Form;
“Implementation Services” has the meaning set out in the Order Form;
“Initial Term” has the meaning set out in the Order Form;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to .claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Legal Terms” means these terms and conditions that the Parties agree shall apply to all Services provided by Coyote under the Agreement;
“On-Going Fees” means the fees payable by the Customer for the On-Going Services, the amount of which as at the Effective Date is set out in the Order Form;
“On-Going Services” has the meaning set out in the Order Form;
“Order Form” means the order form for the supply of the Services, signed by Coyote and Customer;
“Renewal Term” shall mean (i) a further Term of 12 months, where the Initial Term or relevant Renewal Term was a 12 month Term, or (ii) a further Term of 1 month, where the Initial Term or relevant Renewal Term was a 1 month Term;
“Services” means the Ongoing Services, the Implementation Services (if any), and the Support Services, relating to the Forbury Datum platform, an acquisition underwriting tool developed specifically for the UK transactions market allowing users to seek an IRR, run instant ratios and metrics, and make quick acquisition decisions. The model features locked cells and clear error alerts, eliminating the risk of calculation errors and ensuring version control across team members;
“Software” means the software application known as “Datum” developed, owned and maintained by Forbury (including any associated documentation provided by Forbury) and that is provided to the Customer remotely as a service via the internet;
“Standard Support Hours” means the hours of 9:00 a.m. to 5:30 p.m. (UK Time) on Business Days;
“Standard Contractual Clauses” means (i) the European Commission’s Standard Contractual Clauses for the transfer of personal data from the European Union to processors established in third countries, as set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 together with the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, or (ii) the standalone ‘International Data Transfer Agreement’ issued by the Commissioner, or (iii) any such other clauses or transfer agreement as may be approved for use in the UK from time to time;
“Support Services” means the Coyote Support Services, and Forbury’s standard support service as more fully described in the EULA;
“Term” means the Initial Term together with all Renewal Terms, or where the context requires, the current Initial Term or Renewal Term, as applicable;
“Virus” means any thing or device (including any software, code, file or programme) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or device.
1.2 Holding company and subsidiary have the meaning as defined in section 1159 of the Companies Act 2006
1.3 A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.4 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.5 A reference to writing or written includes e-mails.
2.1 The Agreement shall commence on the Effective Date and shall continue for the Initial Term and shall automatically renew and continue for consecutive Renewal Terms until terminated in accordance with clause 11.
3. Licence terms
3.1 In consideration for the Fees, Coyote shall procure for Customer a non-exclusive, non-transferable (other than as provided for in the Agreement) licence for the Term to use the Software, and to receive the Services subject to the terms of this Agreement and the EULA between Customer and Forbury.
3.2 The Customer shall:
3.2.2 not sub-license the Software;
3.2.3 not translate, adapt, vary or modify the Software in any way without prior written consent from Coyote;
3.2.4 not share access credentials or in any way permit access to the Software or receipt of the Services unless the Customer has notified Coyote (and Forbury in accordance with the EULA) of a reassignment of an Authorised User’s account in its entirety to another individual, in which case the prior Authorised User shall no longer have any right to access to use the Software, or to receive the Services. For clarity, the maximum number of Authorised Users authorised to access and use the Software shall not exceed the number of user subscriptions the relevant Order Form, or as otherwise purchased from Coyote from time to time;
3.2.5 Customer shall put into place and maintain reasonable security measures to safeguard the Software from access or use by any unauthorised person(s) in accordance with generally accepted security practices;
3.2.6 Customer shall be responsible for the input and transfer of all data for use with the Software;
3.2.7 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property; and Coyote reserves the right on Forbury’s behalf, without liability or prejudice to its other rights, to disable an End User Customer’s access to any material that breaches the provisions of this clause; and
3.2.8 the Customer shall not attempt to:
(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
(b) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Software in order to build a product or service which competes with the Services.
3.3 If either Coyote’s or Forbury’s monitoring of the Services reveals that any unauthorised users have accessed the Software in excess of any End User limit agreed with the End User Customer, then Coyote (and/or Forbury) shall notify the Customer of such unauthorised users. Coyote and Customer shall use their respective reasonable endeavours to co-operate to agree an increase to the number of users to reflect Customer’s increased number of users. In the event Coyote and the Customer are unable to reach an agreement under this Clause 3.3, without prejudice to Coyote’s other rights, Customer shall pay to Coyote an amount equal to any underpayment of fees.
4. Additional users
4.1 Notwithstanding Clause 3.3, the Customer may add additional Authorised Users with the prior written consent of Coyote (not to be unreasonably withheld) at any time. The Customer shall be charged additional fees calculated in accordance with clause 4.2 at the time any additional Authorised Users are added.
4.2 The Fees for any additional Authorised Users will be charged on a pro-rata basis for the remainder of the then current Term. Coyote will invoice any Fees on or around the date of your request to add additional Authorised Users. Invoices for additional Authorised Users will be payable within 14 days of the date of the invoice.
5.1 Coyote shall:
5.1.1 procure the provision of the Services with reasonable skill and care;
5.1.2 meet any performance dates specifically agreed; and
5.1.3 use reasonable endeavours to procure that Forbury ensures that the Software is always available, subject to any emergency or planned maintenance, and to give as much notice to Customer as is practicable in advance of any planned maintenance.
5.2 Coyote warrants that:
5.2.1 it shall comply with all Applicable Laws when performing its obligations under the Agreement;
5.2.2 (to the extent not listed as an obligation of the Customer), it shall maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement;
5.2.3 in performing its obligations under the Agreement, it will apply such time, attention, resources, trained personnel and skills as it deems necessary for the due and proper performance of the Services.
5.3 Any claim against Coyote under Clause 5.2 shall be limited to an amount equal to 100% of the Fees actually received by Coyote in the 12 months preceding the relevant breach.
5.4 All Support Services shall be provided in accordance with the Coyote Support Services terms at Schedule 1, and/or the EULA, as applicable.
5.5 Each Party warrants that it has the power and authority to enter into and perform the Agreement, which constitutes valid and binding obligations on it in accordance with its terms.
5.6 Coyote does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements. Coyote is not responsible for 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. As a result, except as stated in the Agreement otherwise, Coyote excludes (to the fullest extent permitted by Applicable Law) all other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the Agreement, whether by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.
6. Customer’s obligations
6.1 Customer shall:
6.1.1 co-operate with Coyote and Coyote’s Personnel in all matters relating to the Agreement;
6.1.2 provide Coyote with all documents, information, items and materials in any form (whether owned by Customer or a third party) required by Coyote to perform the Services in a timely manner, and ensure that these are accurate and complete;
6.1.3 ensure any Services meet its requirements;
6.1.4 obtain and maintain all necessary licences and consents as required to enable Coyote to perform its obligations under this Agreement;
6.1.5 comply with all Applicable Laws;
6.1.6 use the Services in accordance with the terms and conditions of the Agreement and any other instructions reasonably given by either Coyote or Forbury;
6.1.7 ensure that its network and systems comply with the relevant specifications provided by Coyote and/or Forbury from time to time; and
6.1.8 comply with any additional responsibilities of the Customer as set out in the Order Form.
6.2 When accessing the information technology systems of the Customer, Coyote shall use reasonable endeavours to comply with all written policies, standards and procedures relating to the security of the relevant systems of which are notified in writing, from time to time to the extent these are reasonable.
6.3 Without prejudice to any other right or remedy Coyote may have, if Coyote’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (including a failure to comply with any of its obligations under Clause 6.1 or the Order Form) (a “Customer Default“) then:
6.3.1 Coyote and Coyote’s Personnel shall use reasonable endeavours to mitigate the impact of the Customer Default; and
6.3.2 Coyote shall not be responsible for any failure to carry out the relevant obligations and shall be allowed an extension of time to perform its obligations.
7. Fees and payment terms
7.1 Customer shall pay Coyote the Fees in respect of the delivery of the Services.
7.2 Coyote shall invoice Customer for the Customer Fees monthly in arrears (unless agreed otherwise in the Payment Terms section of the Order Form).
7.3 Customer shall pay each invoice submitted by Coyote:
7.3.1 within thirty (30) days of the date of the invoice; and
7.3.2 in full and in cleared funds via bank transfer to a bank account nominated in writing by Coyote.
7.4 All amounts payable by Customer under the Agreement are exclusive of value added tax, or any locally applicable equivalent sales tax or levies payable as a result of providing the Services (“VAT“). The Customer shall pay any such VAT arising from Coyote providing the Services on receipt of a valid invoice from Coyote as and when due.
7.5 At the beginning of each Renewal Term, the On-Going Fees will increase by an amount equal to the percentage increase in the Consumer Price Index Rate in the 12 months preceding the relevant Renewal Term plus 5% (“CPI plus 5%”). Coyote may review and increase the Fees by more than CPI plus 5% provided that in such case it shall give the Customer at least 75 days’ prior written notice of the increase and that such increase shall not take effect before the end of the then Initial Term or Renewal Term (as applicable).
7.6 If either Party disputes its obligation to pay any sum due under the Agreement, that Party shall promptly notify the other Party of such dispute and may withhold payment of such disputed sum until such dispute is resolved. In the event that such dispute is not resolved within 45 days of the sums becoming due for payment, the Parties shall revert to the dispute resolution procedure set out in Clause 14.
7.7 If a Party fails to make any payment due under the Agreement by the due date for payment, then interest on the overdue amount shall accrue on a daily basis from the due date until the payment date (whether before or after judgment) at the rate of four per cent (4%) per annum above Barclays Bank Plc’s base rate from time to time. Where the late paying Party is the Customer, then, without prejudice to Coyote’s other rights or remedies, Coyote may suspend such Services unpaid by the Customer, until payment has been made in full for such Service.
7.8 The Customer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Coyote may at any time, without limiting its other rights or remedies, set off, deduct or withhold from any liability owed to the Customer under or in connection with the Agreement (whether present, future, actual or contingent, liquidated or unliquidated, disputed or undisputed).
8. Intellectual property rights
8.1 Nothing in the Agreement shall provide the Customer with any right, title or interest in or to the Intellectual Property Rights of Coyote or its licensors unless stated otherwise.
8.2 Ownership of any Customer Materials shall be vested in, and remain the property of, the Customer or its licensors.
9. Data protection
9.1 In this Clause 9 (and elsewhere in these Legal Terms):
9.1.1 the terms “Controller“, “Data Subject“, “Processing“, “Processor“, “Personal Data Breach”, and “appropriate technical and organisational measures” bear the respective meanings given to them in the applicable Data Protection Legislation, and “Process” shall be construed accordingly;
9.1.2 “Personal Data” means any information relating to an identified or identifiable living individual that is processed by Coyote on behalf of the Customer as a result of, or in connection with, the provision of the Software and/or Services under this Agreement; an identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual;
9.1.3 “Domestic Law” means the law of the United Kingdom or a part of the United Kingdom;
9.1.4 “EU Law” means the law of the European Union or any member state of the European Union; and
9.1.5 “Sensitive Personal Data” refers to the special categories of Personal Data described as such in the applicable Data Protection Legislation.
9.2 Each Party shall comply with the requirements of the Data Protection Legislation in respect of the activities that are the subject of the Agreement and shall not knowingly do anything or permit anything to be done which might lead to a breach by the other Party of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.
9.3 The Parties acknowledge that for the purposes of the Data Protection Legislation the Customer is the Controller and Coyote is the Processor. The Data Processing Addendum attached to these Legal Terms sets out the scope, nature and purpose of Processing by Coyote, the duration of the Processing and the types of Personal Data and categories of Data Subject.
9.4 The Customer warrants, undertakes and represents that:
9.4.1 all Personal Data has been fairly and lawfully obtained (or may be collected by Coyote fairly and lawfully in accordance with its instructions);
9.4.2 it has the right to lawfully supply the Personal Data (including obtaining express consent from the relevant Data Subject to the Processing of the Personal Data in accordance with the Agreement (where necessary));
9.4.3 it will comply with the Data Protection Legislation (including ensuring that the instructions that it provides in relation to the processing and collecting of such Personal Data also complies with the Data Protection Legislation);
9.4.4 it will only supply, transfer to, or share with Coyote Personal Data as necessary for the provision of the Services, and in any case will not supply Coyote with any data relating to individual Data Subjects other than: first name, last name, email address, city, telephone number (optional) and employer without the prior written permission of Coyote (for the avoidance of doubt “supply” of personal data includes uploading any data or documents containing Personal Data to the Software); and
9.4.5 it will not supply, transfer to, or share with Coyote, any Sensitive Personal Data without the prior written permission of Coyote (for the avoidance of doubt “supply” of Sensitive Personal Data includes uploading any data or documents containing Sensitive Personal Data to the Software).
9.5 The Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Coyote and/or lawful collection of the Personal Data by Coyote on behalf of the Customer for the duration and purposes of the Agreement.
9.6 Without prejudice to the generality of Clause 9.2, Coyote shall, in relation to any Personal Data Processed in connection with the performance by Coyote of its obligations under the Agreement:
9.6.1 put in place and maintain appropriate technical and organisational measures against the accidental, unlawful or unauthorised processing, destruction, loss, damage or disclosure of that 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;
9.6.2 process that Personal Data only on documented instructions from the Customer unless Coyote is required by Domestic Law to otherwise process that Personal Data. Where Coyote is relying on Domestic Law as the basis for Processing Personal Data, Coyote shall promptly notify the Customer of this before performing the Processing required by the Domestic Law unless the Domestic Law prohibits Coyote from so notifying the Customer;
9.6.3 ensure that access to the Personal Data is limited to those employees or authorised subcontractors who need access in order to meet Coyote’s obligations under the Agreement and that all such employees and authorised subcontractors are informed of the confidential nature of the Personal Data and are obliged to keep the Personal Data confidential;
9.6.4 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject in relation to the Personal Data and in ensuring compliance with the Customer’s obligations in relation to the Personal Data under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, taking into account the nature of Processing and the information available to Coyote;
9.6.5 immediately inform the Customer if, in the opinion of Coyote, an instruction in relation to the Personal Data infringes the Data Protection Legislation; and,
9.6.6 at the Customer’s discretion, destroy or return all Personal Data or copies thereof on termination of the agreement unless required by Domestic Law to store the Personal Data.
9.7 Coyote may transfer the Personal Data outside of the UK and/or European Economic Area provided that it fulfils its applicable obligations under Data Protection Legislation including the following:
9.7.1 Coyote or the Customer has provided appropriate safeguards (as required by the Data Protection Legislation); and
9.7.2 the relevant Data Subject has enforceable rights and effective legal remedies.
9.8 Without prejudice to the generality of Clause 9.2, Coyote shall, in relation to any Personal Data Processed in connection with the performance by Coyote of its obligations under the Agreement, notify the Customer without undue delay on becoming aware of a Personal Data Breach.
9.9 Each Party shall:
9.9.1 maintain records of all Processing activities relating to any of the other Party’s Personal Data received, processed or generated in connection with the Agreement; and
9.9.2 promptly provide the other Party (and an independent auditor mandated by the Parties) with all reasonable access to such records, as well as any other information and materials to demonstrate its compliance with this Clause 9, provided that the Party requesting access gives the other Party reasonable prior notice of such audit and/or inspection, undertakes no more than one audit in any twelve month period and shall undertake such audit during normal business hours and in such fashion as to minimise any interruption to other Party’s business.
9.10 The Customer hereby gives general consent to Coyote engaging third party data processors to carry out processing activities to fulfil the following functions:
9.10.1 Accounting Services;
9.10.2 Customer Relationship Management;
9.10.3 Customer Support;
9.10.4 Email Services;
9.11 The Customer herby gives consent to Coyote sharing Personal Data with Forbury as a data processor in order to provide any of the Services or the Software.
9.12 Coyote confirms that it has entered or (as the case may be) will enter with the third-party processors into a written agreement substantially on that third party’s standard terms of business and in any case which Coyote confirms reflect and will continue to reflect the requirements of the Data Protection Legislation (including the requirements under Article 28 (4) of UK GDPR). As between the Customer and Coyote, Coyote shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 9. Coyote may update its list of third party processors from time to time. If Coyote proposes adding any new third party processors to the list it shall notify the Customer in writing.
9.13 Where required by applicable Data Protection Legislation, Coyote shall enter into the relevant Standard Contractual Clauses with (i) any Sub-processor of Coyote that is authorised under this Agreement to Process Personal Data; and/or (ii) with the Customer (as necessary).
9.14 The Parties agree that there may be changes to the Data Protection Legislation and therefore the Parties will negotiate in good faith any additional changes that are required to this Clause that are necessary as a result of such changes.
9.15 The Customer acknowledges that where the Customer provides or authorises the collection of Personal Data to or by Coyote under the Agreement, Coyote is reliant on the Customer for direction as to the extent to which Coyote is entitled to use and Process such Personal Data. As at the Effective Date, the Customer warrants and represents to Coyote that Coyote has the right to Process the Personal Data provided to it by the Customer (including relating to Authorised Users, Personal Data about visitors, employees, agents and other occupiers of the Customer’s premises that are provided to Coyote) in order to ensure that Coyote can provide the Services and Software to the Customer. Consequently, Coyote will not be liable for any claim brought by a Data Subject arising from any act or omission by Coyote, to the extent that such act or omission resulted directly from the Customer’s instructions or any other breach by the Customer of the Data Protection Legislation.
10.1 Each Party undertakes that it shall not at any time during the term of the Agreement, and for a period of five years after termination of the Agreement, disclose the other Party’s Confidential Information, except as permitted by Clause 10.2.
10.2 Each Party may disclose the other Party’s confidential information:
10.2.1 to its Affiliates, employees, officers, representatives, consultants or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with the Agreement provided that the disclosing Party has ensured that its Affiliates, employees, officers, representatives, consultants or advisers to whom it discloses the other Party’s Confidential Information complies with this Clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing Party notifies the other Party as far in advance as reasonably possible (unless prevented from doing so by Applicable Law).
10.3 Neither Party shall use the other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
11.1 Either party may terminate the Agreement with effect from the end of the Initial Term or any relevant Renewal Term by giving notice in writing to the other party of not less than: (i) 60 days prior to the expiry of the then current Term, such Term is for a period of 12 months; or (ii) 7 days prior to the expiry of the then current Term, where such Term is for a period of 1 month.
11.2 Without affecting any other right or remedy available to it and notwithstanding a Party’s right to terminate pursuant to Clause 15.4, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
11.2.1 the other Party commits a material breach of any term of the Agreement and such 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;
11.2.2 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;
11.2.3 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
11.2.4 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 any of 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;
11.2.5 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;
11.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company);
11.2.7 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;
11.2.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
11.2.9 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;
11.2.10 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 11.2.3 to Clause 11.2.9 (inclusive); or
11.2.11 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.3 Without affecting any other right or remedy available to it, Coyote may terminate the Agreement with immediate effect by giving written notice to the Customer if:
11.3.1 the Customer 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; or
11.3.2 Forbury terminates the EULA with the Customer as a result of the Customer’s breach of the same.
12. Consequences of termination
12.1 On termination or expiry of the Agreement for any reason the Customer shall immediately pay to Coyote all of Coyote’s outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, Coyote may submit an invoice, which shall be payable by the Customer within 30 days of receipt.
12.2 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
13. Limitation of liability
13.1 Nothing in the Agreement shall limit or exclude a party’s liability for:
13.1.1 death or personal injury caused by its negligence;
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4 a breach by a Party of its obligations under Clause 10;
13.1.5 payment of any Fees due under the Agreement;
13.1.6 any other liability which cannot be limited or excluded by Applicable Law.
13.2 Subject to Clause 13.1, neither Party shall be liable, whether in contract, tort (including negligence), misrepresentation (whether innocent or negligent), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
13.3 Subject to Clause 13.1, and excluding Customer’s obligation to pay any Fees, either Party’s total liability to the other Party, whether in contract, tort (including negligence), misrepresentation (whether innocent or negligent), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement in any 12 month period shall be limited to an amount equal to 100% of the Fees actually received by Coyote in the 12 months preceding the relevant breach.
14. Multi-tiered dispute resolution procedure
14.1 Any dispute which may arise between the Parties concerning the Agreement shall be determined as follows:
14.1.1 the dispute shall first be referred to a director of Customer and an authorised representative of Coyote who shall negotiate in good faith in an attempt to resolve the dispute as speedily as possible. If those negotiations do not result in a settlement of the dispute within 14 days of their commencement then the provisions of Clause 14.1.2 or 14.1.3 below (as appropriate) shall apply;
14.1.2 the Parties shall attempt to determine the dispute by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure; and
14.1.3 if the Parties cannot resolve the dispute by mediation within 60 calendar days of the date of the first mediation meeting, then either Party may apply to the Courts of England and Wales who shall have exclusive jurisdiction to hear and determine any such unresolved dispute.
14.2 Nothing in Clause 14 shall prevent either Party from applying to the Courts of England and Wales for injunctive or other interim relief at any time.
15. Force Majeure
15.1 “Force Majeure Event” means any circumstance not within a Party’s reasonable control including:
15.1.1 acts of God, flood, drought, earthquake or other natural disaster;
15.1.2 epidemic or pandemic;
15.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
15.1.4 failure of IT or telecommunication systems or infrastructures of third parties;
15.1.5 nuclear, chemical or biological contamination or sonic boom;
15.1.6 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
15.1.7 collapse of buildings, fire, explosion or accident;
15.1.8 interruption or failure of utility service.
15.2 Provided it has complied with Clause 15.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event (“Affected Party“), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3 The Affected Party shall:
15.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
15.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 45 calendar days, the Party not affected by the Force Majeure Event may terminate the Agreement by giving the Affected Party written notice.
16. Assignment and other dealings
16.1 Save as provided herein, neither party may assign, transfer or sub-contract (save in the case of any Services provided by Forbury on behalf of Coyote) any of its rights and obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, provided that nothing in this clause shall restrict the ability of a party to assign their rights in this Agreement in connection with (a) a bona fide sale of all or substantially all of the assets of such party, or (b) any form of group restructure of the party concerned where, immediately following such restructure, the ultimate owner(s) of such party and its assignee remain the same.
16.2 Notwithstanding clause 16.1, Coyote may engage Forbury, acting by its one of its employees, representatives, agents or contractors, to provide any part of the Services.
No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
18.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
18.2 A failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.3 A Party that waives a right or remedy provided under the Agreement or by law in relation to one Party, or takes or fails to take any action against that Party, does not affect its rights in relation to any other Party.
19. Rights and remedies
The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
20.2 If one Party gives notice to the other of the possibility that any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 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.
21.2 The Parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those that are expressly stated in the Agreement.
21.3 Neither Party shall have any remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement, unless the statement was made fraudulently.
22.1 The Agreement shall apply to the exclusion of, and shall prevail over, any terms and conditions contained in or referred to it any documentation submitted by Forbury, or in any correspondence or elsewhere or implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by a director or other authorised representative of both Parties.
22.2 If there is any conflict or inconsistency between any of the provisions of the EULA, the, Legal Terms, any schedules thereto, and the Order Form, then the conflict or inconsistency shall be resolved by giving the documents the following order of precedence (with the earlier mentioned documents taking priority):
(a) the Order Form;
(b) the EULA;
(c) the Legal Terms (excluding any Schedules); and
(d) the Schedules to the Legal Terms.
23. No partnership or agency
23.1 Nothing in the Agreement is intended to, nor shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
23.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Third party rights
24.1 Save as stated in clause 24.2, the Parties do not intend that any other Party other than a Party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
24.2 Notwithstanding clause 24.1, it is intended that the Customer and Forbury shall each have the right to enforce the terms of the EULA against the other.
25.1 Any notice given to a Party under or in connection with the Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) (in the case of notices to be provided to Coyote) sent by email to the address specified below:
Coyote email address for notices: firstname.lastname@example.org
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at 9.00am on the next Business Day after transmission.
25.3 This clause 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.
The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
27. Governing law
The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Schedule 1 – Coyote support services
Coyote shall provide front-line support during Standard Support Hours to the Customer consisting of a support desk to receive incidents, by e-mail, relating to use of the Software from the Customer.
Where Coyote is unable to resolve the relevant issue, it shall refer the matter to Forbury.
Neither Coyote, nor Forbury’s support services include:
1. configuration and installation of the Software;
2. correction of errors or defects caused by modification, revision, variation, translation or alteration of the Software by or on behalf of the End User Customer that are not expressly authorised or performed by Forbury;
3. correction of errors or defects caused by operation of the Software in a manner other than as contemplated by the documentation provided by us with the Software;
4. training of the employees of the End User Customer;
5. modelling advice;
6. correction of errors arising directly out of your failure to comply with these terms; or
7. correction of errors or defects in any third party software or any hardware or caused by any third party software or any hardware.
Forbury may, with consent from Coyote, provide any of the services referred above subject to additional charges at Forbury’s then current rates. Coyote will notify the Customer setting out any such additional charges, which the Customer must agree prior to Forbury carrying out any of the services set out above.