1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (“Terms and Conditions”).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential in nature, including confidential information concerning a party’s business, affairs, customers, clients or suppliers.
Contract: the contract between MUSO and the Customer for the supply of Services in accordance with the Order and these Terms and Conditions.
Customer: means the Customer set out on the Order.
Effective Date: the date of the Contract.
Fees: the fees payable by the Customer to MUSO for the Services, as set out in the Order.
MUSO: MUSO TNT Ltd, a company incorporated and registered in England and Wales with company number 07351174 whose registered office is at 207-215 Kings Cross Road, London, WC1X 9DN.
Order: the Customer’s order for the Services as set out on the Customer’s completed MUSO order form, whether such order form is in online or paper form.
Services: the dynamic dashboard provided by MUSO to the Customer under the Contract, as set out in the Order.
Software: any online software applications or platforms provided by MUSO as part of the Services.
Term: the duration of this Contract as set out in the Order.
1.2 Clause and paragraph headings shall not affect the interpretation of this Contract.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 A reference to writing or written includes e-mails.
1.6 Where the words “include”, “including” or similar expressions are used in these Terms and Conditions, they are deemed to have the words “without limitation” following them.
1.7 References to clauses are to the clauses of these Terms and Conditions; references to paragraphs are to paragraphs of the Order.
2. USE OF THE SERVICES
2.1 Subject to the Customer complying with the terms and conditions of the Contract, MUSO hereby grants to the Customer the non-exclusive, non-transferable right, without the right to grant sub-licences, to use the Services during the Term.
2.2 The Customer shall keep a secure password for its use of the Services, shall change such password regularly, and shall keep its password confidential.
2.3 The Customer shall not:
(a) allow any third party to use the Services;
(b) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any portion of the Software or any other part of the Services (as applicable) in any form or media or by any means;
(c) access all or any part of the Services in order to build a product or service which competes with the Services;
(d) use the Services to provide services to third parties;
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, shall promptly notify MUSO.
2.5 If the Customer is provided with any reports, data or databases in the course of being provided with the Services (including any data which the Customer accesses or views via the dynamic dashboard), the Customer shall:
(a) only use such reports, data or databases for internal business purposes; and
(b) not publish or disclose such reports, data or databases to any third party,
unless they have the prior written consent of MUSO.
2.6 MUSO shall be entitled to publish case studies about the Customer’s use of the Services and any success achieved through such use, provided that MUSO shall not publish any Confidential Information of the Customer other than in accordance with clause 8.
3.1 MUSO shall, during the Term, provide the Services to the Customer on and subject to the terms of the Contract.
3.2 MUSO shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance.
4. MUSO’S OBLIGATIONS
4.1 MUSO shall perform the Services substantially in accordance with the Order and with reasonable skill and care.
4.2 Clause 4.1 shall not apply to the extent that any non-conformance is caused by use of the Services contrary to MUSO’s instructions, or by modification or alteration of the Services by any party other than MUSO or MUSO’s duly authorised contractors or agents.
4.3 If the Services do not conform with clause 4.1, MUSO will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance within a reasonable period, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 4.1. Notwithstanding the foregoing, MUSO:
(a) 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;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
(i) periods of high activity (whether from the Customer or howsoever otherwise), and the Customer acknowledges that the Services may be subject to limitations, delays and other problems at times of such high activity; and
(ii) the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4 Any times or dates provided for delivery of any Services (including any reports) shall be estimates only and shall not be binding on MUSO.
4.5 The Services provided by MUSO are purely measuring services, accordingly MUSO does not warrant that any of the results or data provided as part of the Services are accurate or complete.
4.5 The Contract shall not prevent MUSO from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to or the same as those provided under the Contract.
5. CUSTOMER OBLIGATIONS
5.1 The Customer shall:
(a) provide MUSO with:
(i) all necessary co-operation in relation to the Contract; and
(ii) all necessary access to such information as may be required by MUSO in order to provide the Services;
(b) comply with all applicable laws and regulations with respect to its activities under the Contract;
(c) ensure that the individuals using the Services and the Software on its behalf do so in accordance with the terms and conditions of the Contract and MUSO shall be responsible for any such individual’s breach of the Contract;
(d) meet with MUSO not less than once every month discuss the Services and to provide feedback on how the Services may be improved; and
(e) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, MUSO may adjust any agreed timetable or delivery schedule as reasonably necessary.
5.2 The Customer shall indemnify MUSO against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by MUSO arising out of or in connection with the Customer’s breach of any of the terms of the Contract.
6.1 The Customer shall pay the Fees to MUSO for the Services in accordance with the Order.
6.2 Payment of the Fees shall be in the currency specified in the Order.
6.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay MUSO any sum due under the Contract on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.3(a) will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) MUSO may suspend all or part of the Services until payment has been made in full.
6.4 All sums payable to MUSO under the Contract:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law.
7. PROPRIETARY RIGHTS
7.1 The Customer acknowledges and agrees that MUSO and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
7.2 MUSO confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
7.3 The Customer hereby grants to MUSO a non-exclusive royalty-free licence to use the Customer’s name, logo, brand, and any trade marks of which it is the proprietor, for the purposes of marketing and promotion of the Services and MUSO for the duration of this agreement.
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
8.2 Subject to clause 8.4, each party shall hold the other’s Confidential Information in confidence and 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 Contract.
8.3 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 Contract.
8.4 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 8.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
8.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute MUSO’s Confidential Information.
8.6 The above provisions of this clause 8 shall survive termination of the Contract, however arising.
9. LIMITATION OF LIABILITY
9.1 Except as expressly and specifically provided in the Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. MUSO shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to MUSO by the Customer in connection with the Services, or any actions taken by MUSO at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
(c) the Services are provided to the Customer on an “as is” basis.
9.2 Nothing in the Contract excludes the liability of MUSO:
(a) for death or personal injury caused by MUSO’s negligence; or
(b) for fraud or fraudulent misrepresentation.
9.3 Subject to clause 9.1 and clause 9.2:
(a) MUSO shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, 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 Contract; and
(b) MUSO’s total aggregate liability in contract, tort, negligence or breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim arose.
9.4 The Customer shall defend, indemnify and hold harmless MUSO against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services or Software.
9.5 MUSO shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss which arises as a result of:
(a) a modification of the Services or Software by anyone other than MUSO;
(b) the Customer’s use of the Services or Software in a manner contrary to the instructions given to the Customer by MUSO;
(c) any act or omission which MUSO carries out at the request or instruction of the Customer; or
(d) the Customer’s use of the Services after notice of the alleged or actual infringement from MUSO or any appropriate authority,
and the Customer (as appropriate) shall defend, indemnify and hold harmless MUSO against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with any such event.
9.6 This clause 9 sets out the Customer’s sole and exclusive rights and remedies, and MUSO’s (including MUSO’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10. TERM, TERMINATION AND SUSPICION
10.1 The Contract shall commence on the Effective Date and, unless otherwise terminated in accordance with this clause 10, shall continue for the Term.
10.2 Without affecting any other right or remedy available to it, MUSO may terminate or suspend the Contract with immediate effect by giving written notice to the Customer, or may suspend performance of its obligations under the Contract, if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the Customer commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(d) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
10.3 On termination of the Contract for any reason:
(a) all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services;
(b) the Customer shall return and make no further use of any data, equipment, property and other items and all copies of them belonging to MUSO;
(c) MUSO may destroy or otherwise dispose of any of the data of the Customer in its possession; 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.
11. FORCE MAJEURE
11.1 MUSO shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of MUSO or any other party), failure of a utility service or transport or internet or telecommunications 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, provided that the Customer is notified of such an event and its expected duration.
12.1 Conflict. If there is an inconsistency between any of the provisions in the main body of these Terms and Conditions and the Order, the provisions in the Order (including any Special Terms) shall prevail and take precedence.
12.2 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
12.4 Rights and remedies. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
(a) If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
(b) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
12.6 Entire Agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not set out in the Contract.
(c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(a) The Customer shall not, without the prior written consent of MUSO, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) MUSO 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 the Contract.
12.8 No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.9. Third party rights. The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
(a) Any notice required to be given under the Contract 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 Contract, 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.
(b) A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am 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 transmission (as shown by the timed printout obtained by the sender), unless such time of transmission is not between the hours of 9am to 5pm on a Business Day in which case it shall be deemed to have been received at 9am on the next Business Day after transmission.
12.11 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
12.12 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).