Avanty: Software as a Service Agreement

1. ‘Avanty’ is the trading name of Avanty, with its business address at 85 Great Portland street, London, W1W 7LT(“Avanty”, “us” or “we”); and
2. YOU, the customer who has engaged Avanty to provide you with the Services (“Customer” or “you”), for the use of the cloud-based Avanty software application(“Platform”).

(A) Avanty has developed the Avanty software application (available online) which is a full business management tool.

(B) The Customer wishes to use the Software pursuant to its commercial operations.

(C) The Platform will be made available to the Customer to enable the Customer to create a website, make a website available for public viewing 

(D) Avanty has agreed to provide, and the Customer has agreed to use, the Platform subject to the terms and conditions of this Agreement.

We license use of the Platform to you on the terms of this Agreement. We do not sell the Platform to you and we remain the owner of the Platform at all times.

• BY CREATING AN ACCOUNT FOR THE PLATFORM, YOU AGREE TO THE TERMS OF THIS AGREEMENT, WHICH WILL BE BINDING ON YOU.
• IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT LICENSE THE PLATFORM TO YOU AND WE MAY TERMINATE ALL ACCESS IMMEDIATELY.

We recommend that you print or save a copy of this Agreement for future reference.

1.1. The terms of this Agreement apply to the Platform or any of the services accessible through the Platform (“Services”), including any updates or supplements to the Platform or any Service. This Agreement will prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

1.2. We may change these terms at any time by emailing you with details of the change or notifying you of a change when you next log into the Platform. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Platform and the Services.

1.3. From time to time, updates to the Platform may be released. Depending on the update, you may not be able to use the Platform and the Services until you have accepted any new terms. Certain optional upgrades may also be subject to additional payment.

1.4. You accept responsibility in accordance with the terms of this Agreement for the use of the Platform or any Service on or in relation to any device, whether or not it is owned by you (“Device”).

1.5. The terms of our Privacy Notice, Cookies Policy and Website Terms of Use (as updated from time to time), available at www.avantyplc.com are incorporated into this Agreement by reference.

1.6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8. 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.

1.9. Clause headings are for reference purposes only and shall not affect the interpretation of this Agreement.

1.10. A reference to ‘writing’ or ‘written’ includes email unless stated otherwise.

1.11. Please note that only the Avanty App (and not the full software application) is supported on mobile phones and tablets. We recommend that computers (other than mobile phones and tablets) are used for the admin and dash sites and for operating the iframes and Customer websites within the Platform.

2.1. You may place an order for a licence to use the Platform (“Licence”) through the Avanty website or directly through the Platform (collectively defined as the “Website”), on a monthly basis, renewing automatically until the Licence or this Agreement is terminated in accordance with clause 11 (“Licence Period”). The order will detail the applicable fees, the number of employee access rights, the duration of the Licence and you will need to submit your payment details and make payment in accordance with clause 3. Third party products and services may be available to purchase from the Website from time to time, which may be subject to additional terms.

2.2. Where you have selected to obtain a free trial of the Platform (“Trial Period”) on the Website, you will be entitled to use the Platform on a free-of-charge basis for a period of three months. At the end of the Trial Period, your access to the Platform will automatically terminate and you will need to purchase a Licence for continued use of the Platform. During any Trial Period you will only be entitled to use the Platform and the Services as a business tool for the ordinary day to day activities involved in the administration and running of your business.

2.3. Any orders placed by you will be treated as an offer to purchase a Licence, or a Trial Period, to use the Platform. When you place an order, we will send you a message confirming receipt of your order and containing the details of your order (the “Order Notification”). The Order Notification is acknowledgement that we have received your order, and does not confirm acceptance of your offer to purchase a Licence or a Trial Period to use the Platform.

2.4. We only accept your offer, and conclude the contract when we: (i) debit your credit, debit card or PayPal account or (ii) send an e-mail confirming to you that we've accepted your order (the “Order Confirmation”). 

2.5. By purchasing a Licence, you confirm that you have authority to bind any business on whose behalf you purchase a Licence for.

2.6. In the unlikely event that the prices shown on the Website are wrong, and we discover this before accepting your order in accordance with clause 2.4, we are not required to provide a Licence at the price shown. We always try and ensure that the prices shown on our Website are accurate, but occasionally genuine errors may occur. If we discover an error in the price of the Licence that you have ordered we will let you know as soon as possible and give you the option of re-confirming your order at the correct price or cancelling it.

2.7. All credit/debit cardholders are subject to validation checks and authorisation by the card issuer. If the issuer of your payment card refuses to or does not, for any reason, authorise payment to us we will not be liable to you for any delay.

2.8. If your credit or debit card payment is not processed successfully for any reason, we reserve the right to re-attempt process payment. We will give you at least 48 hours’ notice in advance of any re-attempt to process payment by sending an email to the email address you have provided to us. If you do not want us to re-attempt process payment, you must cancel your order within 48 hours of us sending you this email.

3.1. In consideration of the provision of the Licence under this Agreement, you must pay the charges as set out in the applicable order. Notwithstanding the fees specified in an order, we reserve the right to increase the fees annually at our sole discretion upon providing you with written notice.

3.2. All amounts payable must be made in pounds sterling (GBP) and are non-refundable.

3.3. All fees are exclusive of VAT, which shall be payable in addition to the fees (where applicable).

3.4. You will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.

3.5. If you do not pay any fees by the relevant due date, we reserve the right to take the following actions:

(a) charge interest on any outstanding sums from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and/or

(b) suspending the Services that we provide to you. We will not be liable for any loss of data that may occur in relation to the suspension of the Services. 

3.6. We may set-off any liability that you may have to us against any liability that we may have to you.

4.1. Subject to circumstances outside of our reasonable control, we aim to keep the Platform operational:

(a) for a minimum of 99% of the time during “Working Hours” (9-5pm GMT Monday to Friday, excluding bank holidays in England);

(b) 95% of the time overall; and

(c) so that 95% of all Customers can log-on within five minutes of their first attempt on any occasion.

4.2. We shall use reasonable endeavours to publish the times of planned system outages within the Platform. So far as is reasonably practical, we shall aim to keep any planned system outages outside of Working Hours and shall aim to keep such outages under four hours’ continuous duration on each occasion.

4.3. We do not warrant that your use of the Platform will be uninterrupted or error-free or that the Services obtained by you through the Platform will meet your requirements.

4.4. We are 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 you acknowledge that the Platform and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.1. Except as expressly set out in this Agreement you agree:

(a) not to copy the Platform, the Services or any underlying source code;

(b) not to disclose your login information to the Platform to any other person;

(c) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Platform;

(d) not to make alterations to, or modifications of, the whole or any part of the Platform, or permit the Platform or any part of it to be combined with, or become incorporated in, any other programs;

(e) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

i. not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or

ii. not to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; 

(f) not to access all or any part of the Platform or the Services in order to build a Platform or service which competes with the Platform; 

(g) subject to clause 6.6, not to use the Platform or the Services to provide services to third parties; 

(h) subject to clause 6.6, not to license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Services available to any third party;

(i) not to attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as permitted by Agreement;

(j) not to provide or otherwise make available the Platform in whole or in part (including object and source code), in any form to any person without prior written consent from us; and

(k) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Platform or any Service,

together defined as “Licence Restrictions”.

6.1. You must: 

(a) not use the Platform or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including any thing or device (including any software, code, file or programme) which may: 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; 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 adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices, into the Platform, any Service or any operating system;

(b) not infringe our Intellectual Property Rights or those of any third party in relation to your use of the Platform or any Service, including the submission of any infringing material by you to the Platform;

(c) not transmit any material that is defamatory, illegal, offensive or otherwise objectionable in relation to your use of the Platform or any Service;

(d) not use the Platform or any Service for any illegal, misleading or unethical purpose or otherwise in any manner which may be detrimental to the reputation of Avanty or any person;

(e) not use the Platform or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and

(f) not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service,

together defined as “Acceptable Use Restrictions”.

6.2. You shall use your best endeavours to use adequate technological and security measures, including measures we may reasonably recommend, or that you and we may agree to, from time to time, to ensure that all data, login information to the Platform and any other similar information which you hold or are responsible for is secure from unauthorised use or access.

6.3. Without prejudice to the obligations undertaken in this clause 6, you must notify us immediately upon becoming aware or suspecting that any login information has been used, or may be known, by any third party. In the event that an employee or contractor with access to any login information to the Platform ceases to be employed or engaged by you, you must ensure that such individuals do not continue to use any such login information.

6.4. You agree to provide us with all reasonably required information, co-operation and assistance as may be required by us under this Agreement in a timely and efficient manner.

6.5. You acknowledge that you are solely responsible for procuring and maintaining your network connections and telecommunications links from your systems and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet.

6.6. As a feature of the Services, you are permitted to make available the eCommerce functions of the Platform to your End Users. The Customer will be directly responsible for any action or omission of any End User that puts the Customer in breach of this Agreement, including without limitation, the Licence Restrictions and Acceptable Use Restrictions. Consequently, the Customer will indemnify and keep Avanty and its officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all damages, fines, losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Avanty arising out of or in connection with any breach of this Agreement by an End User.

6.7. Pursuant to clause 6.6, it is therefore recommended by Avanty that you should incorporate your own Terms and Conditions and Privacy Notice within your customer account within the Platform to govern your relationship with your End Users.

6.8. In relation to each authorised Customer employee, consultant or agent who uses the Platform (“Authorised User”), the Customer undertakes that:

(a) each Authorised User shall keep a secure password for their use of the Platform and that such password shall be changed no less frequently than every six months and that each Authorised User shall keep their password confidential;

(b) it shall maintain a written, up to date list of current Authorised Users and provide such list to Avanty within five Business Days of Avanty’ written request at any time or times;

(c) it shall permit Avanty to audit the Customer’s use of the Platform and the Services in order to establish the name and user ID of each Authorised User. Such audit may be conducted no more than once per quarter, at Avanty' expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; and

(d) if any of the audits referred to in clause 6.8(c) reveal that any user ID has been provided to any individual who is not an Authorised User, then without prejudice Avanty’ other rights, the Customer must immediately disable such user account.

7.1. In this clause “Intellectual Property Rights” means any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other Intellectual Property Rights or industrial property rights, in each case whether registered or unregistered and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

7.2. You will be responsible for all Intellectual Property Rights in relation to any information, data, content, images, videos, text, documents or any other materials uploaded to the Platform by the Customer or its End Users to the Platform (“External Content”). You will own (or be the licensor of) any External Content.

7.3. You hereby grant Avanty a non-exclusive, irrevocable, worldwide, royalty-free licence to use the Intellectual Property Rights in any External Content solely for use in relation to the provision of the Services to you and your End Users for the duration of this Agreement. 

7.4. You acknowledge: that all Intellectual Property Rights in the Platform and the Services belong to us or our licensors; that rights in the Platform and the Services are licensed (and not sold) to you; and that you have no rights in, or to, the Platform or the Services other than the right to use each of them in accordance with the terms of this Agreement.

7.5. You are hereby granted a non-exclusive, revocable, non-transferable (subject to clause 6.6) licence to use the Platform and the Services in the country that you are resident in for your internal business operations. The Platform and the Services may be used for the duration of the Licence Period (or Trial Period) and this right will terminate upon the relevant period’s termination or expiry. 

7.6. Pursuant to the rights in clause 6.6, the Customer must ensure that End Users do not have a further right to sub-licence and any use of the Platform by End Users will be strictly non-transferable.

7.7. You acknowledge that you have no right to have access to the Platform in source-code form.

7.8. The Customer will indemnify and keep Avanty and its officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all damages, fines, losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Avanty arising out of or in connection with any claim:

7.8.1. in relation to the External Content infringing a third party’s Intellectual Property Rights; and/or

7.8.2. for any inaccurate, incomplete, defamatory, offensive or illegal content, information or materials provided by you or End Users either directly or indirectly to Avanty.

8.1. A party (“Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its Platforms and services which the Receiving Party may obtain (“Confidential Information”).

8.2. In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:

(a) to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;

(b) not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and

(c) to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.

8.3. Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:

(a) is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;

(b) the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;

(c) the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;

(d) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or

(e) is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.

8.4. This clause 8 shall survive termination of this Agreement, however arising.

9.1. General Obligations. Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection and Privacy Laws and any other applicable privacy laws and regulations. “Data Protection and Privacy Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the General Data Protection Regulation 2016/679 (GDPR), the Data Protection Act 2018, and to the extent applicable, the data protection or privacy laws of England and any other country. “Personal Data” shall have the meaning defined by the applicable Data Protection and Privacy Laws.

9.2. Data Specification: The Customer must provide Avanty with a document setting out the (a) subject matter and duration of any processing to be undertaken by Avanty; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.

9.3. Data Controller. The Customer acknowledges and agrees that it will be the Data Controller under this Agreement and that it will be responsible for adequately addressing the use of cookies and data protection obligations in its end-customer / Customer Terms and Conditions and policies. As Avanty does not have any control over the Customer’s data protection notices, policies and Terms and Conditions, the Customer will indemnify and keep Avanty and its Affiliates indemnified against all damages, fines, losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Avanty arising out of or in connection with any claim in respect of: (a) a breach of clause 9.1, 9.2 or 9.3; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through, the Customer’s website(s); and (c) the consent of data subjects for the exportation of any Personal Data outside of the European Economic Area by Avanty under clause 9.6.

9.4. Data Processor. Avanty acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from the Customer strictly confidential (pursuant to clause 8 (Confidentiality), and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from the Customer is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Customer and Avanty shall not process the Personal Data for any other purpose, unless required by law to which Avanty is subject, in which case Avanty shall to the extent permitted by law inform the Customer of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring Avanty to amend, transfer or delete the Personal Data or any part of the Personal Data made by the Customer during this Agreement; and (e) notify the Customer without undue delay or in any case within 48 hours upon Avanty or any sub-processor becoming aware of a breach affecting Personal data and at this time providing the Customer with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection and Privacy Laws.

9.5. Assistance. Avanty agrees to assist the Customer with all subject access requests which may be received from an end-customer in a prompt timeframe (at the Customer’s cost) and ensure that appropriate technical and organisational measures are in place to enable the Customer to meet its obligations to those requesting access to Personal Data held by Avanty. Upon request, Avanty shall provide you with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 9. Avanty shall assist the Customer in relation to any data impact assessments (provided that Avanty shall be entitled to charge a reasonable fee for such assistance) and/or any reasonable prior consultation with the relevant data protection authority.

9.6. Data Transfers. Avanty agrees not to transmit any Personal Data to a country or territory outside the European Economic Area without the Customer’s prior written consent, provided that such consent is hereby deemed provided where the Personal Data is subject to an adequate level of protection in accordance with Data Protection and Privacy Laws.

9.7. Return of Data: Upon the termination or expiry of this Agreement for any reason, Avanty shall return all Personal Data to the Customer as requested by the Customer in writing, provided that this shall not prevent Avanty from retaining a copy to meet its legal or regulatory obligations.

9.8. Sub-Processors. The Customer hereby agrees that Avanty may appoint any sub-contractors as sub-processors without requiring further consent. Such sub-processors are deemed to be approved under this clause and the Customer may request a list of such sub-processors from time to time.

9.9. Safeguards. Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorised or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.

10.1. This clause 10 sets out the entire financial liability of Avanty (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you: 

(a) arising under or in connection with this Agreement;

(b) in respect of any use made by you of the Platform and the Services or any part of them; and

(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

10.2. Except as expressly and specifically provided in this Agreement:

(a) you assume sole responsibility for any information or data obtained from the use of the Platform and the Services and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information or data provided to us by you or any End Users in connection with the Services;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. You acknowledge that the Platform has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Platform as described in the applicable documentation meet your requirements; and

(c) the Platform and the Services are provided to you on an “as is” basis.

10.3. Nothing in this Agreement limits or excludes the liability of either party for death or personal injury resulting from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.

10.4. Subject to clause 10.3 and excluding any provisions in Agreement where an indemnity is provided by either party:

(a) Avanty will not be liable to you for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

(b) Avanty’ total liability to you in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to the higher of the fees paid by you to us in the 12 months prior to the claim or £1,000.

11.1. This Agreement and the Licence will automatically terminate:

(a) at the end of a Trial Period;

(b) upon the Customer cancelling the Licence within the Platform, which will take effect at the end of the billing cycle of the then current contract month; or

(c) upon Avanty serving at least 30 days’ written notice on the Customer.

11.2. Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:

(a) a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or

(b) an event, including (or similar in nature to) the following:

i. the Defaulting Party is unable to pay its debts as they fall due;

ii. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;

iii. a receiver is appointed in respect of the whole or any part of the Defaulting Party;

iv. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or

v. the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

11.3. We may terminate this Agreement immediately by written notice to you if you or an End User breaches any of the Licence Restrictions or the Acceptable Use Restrictions.

11.4. On termination for any reason:

(a) all rights granted to you under this Agreement shall cease;

(b) subject to clause 11.4(c) you must immediately cease all activities authorised by this Agreement, including your use of any Services;

(c) you must export all External Content from the Platform within 14 days of the effective date of termination and thereafter, all External Content stored within the Platform will be irretrievably deleted by us; and

(d) 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

12.1. Subject to clause 12.2, all notices must be in writing and are deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s main business address. It is agreed that serving notice by email or fax will not be an effective method of providing notice of a claim under this Agreement.

12.2. If you wish to contact us in relation to the Platform or the Services, you can send this to us by e-mail to [email protected]. If we have to contact you or give you notice in writing, we will do so by e-mail to the address you provide to us when you set up your account.

13.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by any act or event beyond our reasonable control, including without limitation, strikes, lock-outs or other industrial disputes or illness involving the workforce of Avanty, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, 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 (“Event Outside Our Control”).

13.2. If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement:

(a) our obligations under this Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and

(b) we will use our reasonable endeavours to find a solution by which our obligations under this Agreement may be performed despite the Event Outside Our Control.

13.3. If the Event Outside Our Control continues for a period of four weeks or more, the unaffected party may terminate this Agreement with immediate effect by providing the other party with written notice.

14.1. You acknowledge that the Platform may enable or assist you to access the website content of, correspond with, and purchase services from, third parties via third-party websites and that you do so solely at your own risk.

14.2. Avanty makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. 

14.3. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not Avanty. We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Platform.

15.1. This 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. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that are not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

15.2. We reserve the right to make changes to this Agreement at any time upon providing you with notice. We will provide you with any updated terms on the login page of the Platform. If you continue to use the Platform then you will be deemed to have accepted the updated Agreement.

15.3. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15.4. You shall not, without the prior written consent of Avanty, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Avanty may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

15.5. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15.6. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

15.7. If any provision or part-provision of this Agreement is or become 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 this Agreement.

15.8. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

15.9. If you have any issues with our services, please contact us at [email protected]. Please note that the European Commission has established the ODR Platform, which is available at http://ec.europa.eu/consumers/odr/, as a potential means of resolving disputes.

16.1. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.