(Last updated February 2021)
Diagnostax Limited is incorporated and registered in England and Wales with company number 09960299 whose registered office is at Alpha House, 4 Greek Street, Stockport, SK3 8AB (“Diagnostax”).
References in these terms and conditions (“Terms”) to “You” and “Your” shall mean the customer and to Diagnostax shall include its successors and assigns.
These Terms apply to the Services which Diagnostax supplies to You and are binding on any use of the Services. You unconditionally agree to be bound by these Terms and for the Contract to govern Your use of the Services before accepting the Subscription Order Form. If You are entering into the Contract on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these Terms.
You acknowledge and agree that these Terms are incorporated into and govern the Contract between Diagnostax and You and that Diagnostax reserves the right to amend these Terms from time to time and You shall be subject to these Terms as amended. Any amendment or changes to the Terms shall be effective immediately upon posting on the Website. Diagnostax shall make every effort to inform you of the changes by means of notifications on the Website or email to You.
These Terms were last updated on 10th February 2021.
1.1 In these Terms, the paragraph above and in the Contract, the following definitions and rules of interpretation in this clause shall apply.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
“Authorised Users” means individuals who are Your Representatives and authorised by You to use the Services as described in clause 3.2 and the numbers of which are set out in the Subscription Order Form.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges” means the charges payable (pursuant to clause 5) by You to Diagnostax under the Contract and as set out in the Subscription Order Form for the supply of the Services in accordance with the Terms.
“Commencement Date” means the date when the Contract enters into force which, unless specified otherwise in the Subscription Order Form, is the date when You accept the Subscription Order Form.
“Confidential Information” means the confidential information of either Party as referred to in clause 11.
“Contract” means the legally binding contract between You and Diagnostax created when You accept the Subscription Order Form (as amended varied or supplemented from time to time) in accordance with these Terms (as amended varied or supplemented from time to time) for the provision of the Services, the Subscription Order Form together with these Terms forming the Contract between You and Diagnostax.
“Contract Year” means a period of twelve (12) months from the Commencement Date, and (if any) each successive period of twelve (12) months during the Subscription Term and the period (if any) starting on the day following expiry of the last such period of 12 months and ending on the date on which the Contract expires or is terminated.
“Data Protection Legislation” means all applicable privacy and data protection laws including all the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy, any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
“Direct Debit” means an instruction from You to Your bank or building society authorising Diagnostax to collect varying amounts from Your account in accordance with the provision of the Direct Debit Instruction completed in accordance to clause 5.5.
“Disclosing Party” means a Party who provides Confidential Information or on whose behalf Confidential Information is provided.
“End Customer” means a party with whom You have a written and binding agreement to provide tax or accounting services or anticipate entering into a written and binding agreement to provide the said services.
“Force Majeure Event” means any event outside the control of Diagnostax’s which Diagnostax is unable to reasonably prevent or avoid and which affects it’s performance of its obligations under the Contract arising from acts, events or omissions beyond its control including, without limitation, an act of God, flood, drought, earthquake, lightning fire or other natural disaster; war, insurrection, civil war, civil disorder, terrorist attack, military operations or imposition of sanctions; act or omission of government or other appropriate authority; the act or omission of any person for whom Diagnostax is not responsible; riots; strikes, lock-outs or other industrial disputes (whether involving the workforce of Diagnostax or any other party); accident; denial of service or malicious technological attacks, non-performance, failure or delay by agent, suppliers, contractors or subcontractors of Diagnostax, trade blockage or embargo, the failure or delay of supplies of power, fuel or transport.
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking under such circumstances, operating within all applicable laws and consents and taking due account of any applicable guidance, codes of practice or other advice from any relevant authority.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, moral rights, 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.
“Liability” means any and all liability howsoever arising, including out of, or in connection with, a breach of contract or tort (including negligence) breach of statutory duty or otherwise. “Liabilities” shall be interpreted accordingly.
“Minimum Term” means the period of twelve (12) calendar months from the Commencement Date.
“Normal Business Hours” means 09:00 to 17.00 UK time on each Business Day.
“Party” means a party to the Contract, namely either You or Diagnostax (including its successors and assigns), and “Parties” shall be interpreted accordingly.
“Recipient” means a Party who receives Confidential Information or on whose behalf Confidential Information is received.
“Renewal Period” means the period described in clause 14.
“Representatives” means any employee, consultant, officer or director of a Party.
“Services” means the Software subscription provided by Diagnostax to You via the Website or any other website notified to You by Diagnostax from time to time in accordance to Your order (as set out in the Subscription Order Form) and the Terms.
“Software” means an innovative cloud-based software application provided by Diagnostax as part of the Services for accountancy businesses to help them establish a systematic and efficient approach to offering tax advisory services to its End Customers, namely an online questionnaire functionality and related features used to gather information from an End Customer in order to identify areas in which they would benefit from seeking tax advice.
“Subscription Fee” means the subscription fee as set out in the Subscription Order Form (such fee as revised or varied from time to time) and subject to clause 5.14 which entitles Authorised Users to access and use the Services in accordance with the Terms, such fee forming part of the Charges payable by You to Diagnostax pursuant to clause 5 and the Subscription Order Form.
“Subscription Order Form” means the ordering document (as amended varied or supplemented from time to time) accepted by You either through the Website, in writing or by other means for the supply of Services by Diagnostax to You and which sets out the details of Your order (as amended varied or supplemented from time to time).
“Subscription Term” has the meaning given in clause 14.
“Support Services” means the customer support services provided by Diagnostax to You in accordance to Your order (as set out in the Subscription Order Form) and the Terms.
“Support Services Policy” means the policy and conditions governing the provision of the Support Services by Diagnostax to You in respect of the Services and the Software as set out in schedule 1.
UK Data Protection Legislation means any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
“Tax Panel (“TP”)” means Diagnostax’s panel of professional tax advisers that can be accessed by You to provide a quotation for the supply of tax advice to You or the End Customer in a particular advisory area. You are under no obligation to make use of this service.
“VAT” means value added tax or any equivalent tax chargeable in the UK charged at the prevailing rate.
“Virus” means anything 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, any hosting services, 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.
“Website” means the internet site at the domain or any other site operated by Diagnostax from time to time to provide the Services.
“Your Data” means any information and any data inputted by You, by Your Authorised Users or by Diagnostax on Your behalf, including Personal Data as defined in the Data Protection Legislation, for the purpose of using the Services or facilitating Your use of the Services.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, bodies, partnerships, corporate or unincorporated body (whether or not separate legal personality) and any other legal or commercial entity or undertaking.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
1.6 For the purposes of determining whether a limited liability partnership is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be construed so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.7 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.8 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.9 Any reference to a statute or statutory provision in this agreement shall include any statute or statutory provision which amends, extends, consolidates or replaces the same and shall include any orders, regulations, instruments or other subordinate legislation from time to time.
1.10 A reference to writing or written includes fax and e-mail.
1.11 References to clauses, sub-clauses and schedules are to the clauses, sub-clauses and schedules of the Contract.
1.12 References to parts and paragraphs are to parts and paragraphs of the relevant schedule of the Contract.
1.13 The schedule(s) form part of the Contract and shall have effect as if set out in full in the body of the Contract. Any reference to the Contract includes the schedule annexed to the Contract.
1.14 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 Diagnostax shall, during the Subscription Term, provide the Services to You on and subject to the terms of the Contract.
2.2 Diagnostax shall provide the Services within two (2) Business Days from the later date of:
2.2.1 the Commencement Date; or
2.2.2 the date on which Diagnostax receives details of the Authorised Users from You.
2.3 Diagnostax shall use reasonable endeavours to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for:
2.3.1 planned maintenance carried out during the maintenance window of 22.00 to 02.00 UK time; and
2.3.2 unscheduled or emergency maintenance performed outside Normal Business Hours.
2.4 Diagnostax shall use all reasonable endeavours to meet any performance dates specified in the Contract, always provided that if no performance dates are so specified, Diagnostax shall perform the Services within a reasonable time.
2.5 Diagnostax shall use reasonable endeavours to provide the Support Services during Normal Business Hours (the help centre being available twenty-four (24) hours a day, seven (7) days a week) in accordance with the Support Services Policy.
2.6 Diagnostax reserves the right at any time, without Liability to You, to make any change, improvement, substitution or modification in the format, operation, specification, design or configuration of the Services and/or the Software for any reason, provided that any such change, improvement, substitution or modification shall not result in any material reduction in the functionality or performance of the Services or the Software.
2.7 Diagnostax reserves the right at any time, without Liability to You, to make any change, improvement, substitution or modification to the Support Services.
3.1 Subject to You paying the Charges and subject to the restrictions as set out in this clause 3, and in accordance with the Subscription Order Form and the Terms, Diagnostax hereby grants You a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services during the Subscription Term.
3.2 In relation to the Authorised Users, you undertake:
3.2.1 to provide Diagnostax with a written list of the Authorised Users immediately following the Commencement Date;
3.2.2 to provide written notification to Diagnostax within five (5) days of any change(s) to the list of Authorised Users provided under clause 3.2.1;
3.2.3 to maintain a written, up to date list of current Authorised Users and provide such list to Diagnostax within five (5) days of Diagnostax’s written request at any time or times;
3.2.4 the maximum number of Authorised Users that You authorise to access and use the Services shall not exceed the number of Authorised Users as set out in the Subscription Order Form;
3.2.5 that each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;
3.2.6 You shall permit Diagnostax or Diagnostax’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and Your data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter at Diagnostax’s expense, and this right shall be exercised with reasonable prior notice in such a manner as not to substantially interfere with Your normal conduct of business;
3.2.7 if any of the audits referred to in clause 3.2.6 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Diagnostax’s other rights, You shall promptly disable such passwords and Diagnostax shall not issue any new passwords to any such individual; and
3.2.8 if any of the audits referred to in clause 3.2.6 or any investigation reveal or it comes to Diagnostax’s knowledge in any other way that You have underpaid the Subscription Fee to Diagnostax, then without prejudice to Diagnostax’s other rights, then You shall pay to Diagnostax an amount equal to such underpayment as calculated in accordance with the pricing packages set out on the Website within ten (10) days of the date of the relevant audit.
3.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of Your use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
3.3.6 is otherwise illegal or causes damage or injury to any person or property; or
3.3.7 violates any law, copyright or trade secrets which You do not have the right to use, and Diagnostax reserves the right, without Liability or prejudice to its other rights to You, to disable Your access to the Services or any material that breaches the provisions of this clause 3.
3.4 You shall not:
3.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:
attempt to copy, modify, duplicate, adapt, create derivative works from, frame, mirror, republish, reproduce, download, display, transmit, or distribute all or any portion of the Services and the Software or other systems used to deliver the Services in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2 access all or any part of the Services and/or the Software in order to build a product or service which competes with the Services and/or the Software; or
3.4.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users and the End Customers, or
3.4.4 attempt to obtain, or assist third parties in obtaining, access to the Services and/or the Software, other than as provided under this clause 3; or
3.4.5 use the Services in any way which may impair the functionality of the Services or the Software or the Website or other systems used by Diagnostax to deliver the Services; or
3.4.6 use the Services for any fraudulent, illegal or unauthorised use;
3.4.7 attempt to gain unauthorised access to any materials or to any part of Diagnostax’s network or computing systems or to the computer system on which the Services are hosted other than those to which You have been given lawful and express permission to access by Diagnostax; or
3.4.8 attempt to undermine the security or integrity of the Services and/or the Software or of Diagnostax’s networks and computing systems or where the Services are hosted by a third party.
3.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Software and, in the event of any such unauthorised access or use, promptly notify Diagnostax.
3.6 You shall take reasonable steps to ensure that all Your computer systems and network systems are protected against computer viruses and are kept virus free in accordance with Good Industry Practice, and they do not transmit viruses to Diagnostax during electronic interconnection or the exchange of media or data.
3.7 You shall immediately notify Diagnostax of any security breaches with Your network, computing systems or Your computer system and Diagnostax, if it considers necessary, shall reset the password(s) of Your Authorised Users and You must take all other necessary action that Diagnostax reasonably deems necessary to maintain or enhance the security of Diagnostax’s networks, computing systems and Your access to the Services.
3.8 You shall be authorised to create a link on Your website to the homepage of the Website provided You shall:
3.8.1 do this in accordance to the Terms;
3.8.2 do this in a manner that is lawful and does not damage the reputation of Diagnostax;
3.8.3 not suggest or imply any form of association, approval or endorsement from Diagnostax where none exist; and
3.8.4 not do this on any website that is not owned by You;
Diagnostax reserves the right to withdraw the permission provided in this clause 3.8 at any time without notice.
3.9 Use of the Services is subject to the following limitations:
3.9.1 the number of annual tax diagnostics restricted to the maximum number quantified under each pricing package as set out in the Subscription Order Form;
3.9.2 the Services may not be accessed by more than the number of Authorised Users as set out in the Subscription Order Form; and
3.9.3 each Authorised User’s password is strictly restricted to his use of the Services and may not be shared with any other person.
4. ADDITIONAL AUTHORISED USERS
4.1 Subject to clause 4.2, clause 4.3 and clause 4.4, You may, from time to time during the Subscription Term, purchase subscription of Services for additional Authorised Users in excess of the numbers set out in the Subscription Order Form, and Diagnostax may grant access to the Services to such additional Authorised Users in accordance with the provisions of the Contract.
4.2 If You wish to purchase subscriptions of Services for additional Authorised Users, You shall notify Diagnostax in writing. Where Diagnostax approves the request, then subject to clause 4.3, it shall activate the subscription of Services for additional Authorised Users within two (2) Business Days of its approval of Your request.
4.3 If Diagnostax approves Your request to purchase subscription of Services for additional Authorised Users then, subject to the maximum number of Authorised Users permissible under Your pricing package as specified on the Subscription Order Form and unless Diagnostax specifies otherwise in writing, You may be required to move up to the next pricing package and all existing Services will be brought under a new contract. In the event a new contract is agreed and accepted, the Minimum Term shall be reset from the commencement date of the said new contract and the Contract Year shall be reset to commence from the said commencement date.
4.4 Pursuant to clause 4.3 and a new contract being agreed and accepted by You, You shall, within thirty (30) days of the date of its invoices and in accordance with clause 5, pay Diagnostax the revised Subscription Fee on a monthly basis.
5. CHARGES AND PAYMENT
5.1 You shall pay to Diagnostax all of the Charges in accordance with this clause 5.
5.2 You shall pay to Diagnostax, the Subscription Fee monthly in advance in twelve (12) equal monthly instalments on the 1st of each month of the Minimum Term and thereafter, subject to clause 5.14, in respect of any Renewal Periods of the Contract.
5.3 For the avoidance of doubt, the Charges shall be fixed for the Minimum Term of the Contract and then subject to clause 5.14 for any Renewal Periods.
5.4 Any invoices issued by Diagnostax in respect of the Charges shall, save in the case of manifest error, be final, conclusive and binding on You.
5.5 All payments are collected by Direct Debit (to such account as Diagnostax may designate for this purpose). You are required to complete an online GoCardless Direct Debit Instruction on the Commencement Date.
5.6 You shall have seven (7) days from the payment due date of the Direct Debit in which to dispute an invoice. If the invoice has not been disputed before the end of seven (7) days, the invoice shall be deemed to have been approved.
5.7 Subject to clause 5.6, if You determine in good faith that any invoice submitted by Diagnostax is invalid or that the amount being claimed is incorrect for any reason, then You shall advise Diagnostax accordingly in writing. You shall provide details of the invoice and the amount in dispute and if Diagnostax agrees, it shall re-submit the invoice to You within five (5) Business Days of receiving Your notice of dispute. If the Parties cannot agree the validity of the amount being disputed, then the nominated representative of each Party (or their nominees) shall discuss and resolve the matter. If the Parties cannot agree any such revised or reviewed invoice the provisions of clause 20 (Dispute Escalation Procedure) shall apply.
5.8 Except in the case of manifest error or where the invoice or part thereof is the subject of a bona fide dispute, if You fail to make any payment due to Diagnostax within thirty (30) days after the payment due date, then without prejudice to Diagnostax’s other rights and remedies, Diagnostax may, until payment has been received in full:
5.8.1 without Liability to You, disable Your passwords, account and access to all or part of the Services and Diagnostax shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
5.8.2 claim interest on a daily basis on such due amounts at an annual rate equal to four (4) per cent over the then current base lending rate of Barclays Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. A late payment fee may also be charged by Diagnostax.
5.9 Diagnostax reserves the right to refer any outstanding accounts to a debt collection agency, any costs of such debt collection agency shall be payable by You in addition to all the outstanding Charges, interest and late payment fee.
5.10 All Charges, amounts stated or referred to in the Contract:
5.10.1 shall be payable in pounds sterling;
5.10.2 are, subject to clause 13.7.4, non-cancellable and non-refundable;
5.10.3 are exclusive of VAT, which shall be added to Diagnostax’s invoice(s) at the appropriate rate and payable by You in addition to the Charges.
5.11 If for any reason, it is agreed that a payment shall be made other than by Direct Debit, the payment shall be due within thirty (30) days of the invoice date.
5.12 The Charges cannot be decreased during the Minimum Term or the Subscription Term or any Renewal Periods.
5.13 Any omission or delay by Diagnostax in invoicing the Charges shall not prohibit Diagnostax from raising an invoice at a later date in respect of the same nor shall it relieve You of Liability to pay the same.
5.14 You acknowledge and agree that Diagnostax shall have the right to increase the Charges at the start of each Renewal Period upon giving thirty (30) days prior written notice to You.
All Charges amounts due under the Contract 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. YOUR OBLIGATIONS AND WARRANTIES
7.1 You shall:
7.1.1 perform Your obligations as specified in the Contract;
provide Diagnostax with:
adequate, accurate and timely assistance, information and data as is required by Diagnostax for the purposes of complying with its obligations;
co-operation in all matters relating to the Contract;
security access, information (including, without limitation, Your Data) and configuration services to allow Diagnostax to provide the Services;
7.1.2 ensure that Your anti-malware controls and IT security are applied and maintained in accordance with Good Industry Practice and Your IT policies, and shall not intentionally or negligently transfer any malicious materials onto any of Diagnostax’s systems;
7.1.3 be liable at all times for the acts and omissions of Your Representatives and any reference to Your Liability shall extend to Liability of Your Representatives;
7.1.4 ensure that the Authorised Users use the Services in accordance with the Terms and You shall be responsible for any Authorised User’s breach of the Contract; and
7.1.5 carry out all of Your other responsibilities as specified in the Contract in a timely and efficient manner. In the event of any delays in Your provision of such assistance as agreed by the Parties, Diagnostax may adjust any agreed timetable as reasonably necessary.
7.2 If You consider Diagnostax to be in breach of any of its obligations contained in the Contract, then You shall advise Diagnostax in writing and shall provide Diagnostax with a reasonable opportunity to rectify such breach.
7.3 You warrant that You shall obtain and maintain and comply with all necessary licences, registrations, consents, and permissions necessary for Diagnostax, its Representatives, contractors and agents to perform their obligations under the Contract, including, without limitation, providing the Services.
7.4 You warrant that You shall obtain, maintain and comply with all necessary licences, permissions, registrations or consents necessary to use the Services.
7.5 You warrant that You will comply with all applicable laws, statutes and regulations.
8. DIAGNOSTAX’S OBLIGATIONS
8.1 Diagnostax undertake that the Services will be performed in accordance with reasonable skill and care.
8.2 The undertaking under clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Diagnostax’s instructions, or modification or alteration of the Services or the Software by any party other than Diagnostax or Diagnostax’s Representatives or Diagnostax’s duly authorised contractors or agents.
8.3.1 does not warrant that Your use of the Services will be uninterrupted or error-free; and
8.3.2 are not responsible and liable for any delays, delivery failures, or any other loss or damage or Liability resulting from the transfer of data over communications, networks, hosting services and facilities, including the internet, or for any fault occurring or any interruption which is out with Diagnostax’s control and You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such service facilities.
8.4 Diagnostax makes no representation or warranties (whether express or implied), it does not endorse or guarantee, nor does it assumes responsibility or any Liability with respect to the accuracy completeness, legality, reliability and quality of any content or material made available through the Services and/or the Software. Under no circumstances will Diagnostax be liable for any losses, damages, costs, expenses and Liabilities resulting from anyone’s reliance on any information or any content posted on the Software or transmitted through the Services.
8.5 You acknowledge that Diagnostax does not warrant or represent that the operation of the Services and the Software will be uninterrupted or entirely error-free and Diagnostax reserves the right to suspend the access to the Services and/or the Software to carry out scheduled maintenance or emergency maintenance to the Services and/or the Software by giving prior written notice in accordance to clause 2.3. Diagnostax shall notify You as soon as reasonably practicable upon becoming aware of any possible or actual interruptions or errors.
8.6 You acknowledge and agree that the use of the Services and/or the content and material of the Software and/or any results obtained and/or any conclusions drawn from the use of the Services do not amount to any tax or legal advice whatsoever. You agree to notify the End Customers accordingly.
8.7 Diagnostax gives no warranties in relation to the Services and/or the Software. All warranties (whether express or implied), conditions, obligations or implied terms which might otherwise be implied into the Contract by statute, custom or at law (including without limitation, any warranties of fitness for purpose or relating to satisfactory quality) are excluded to the fullest extent permitted by law.
9. YOUR DATA
9.1 In this agreement and specifically in this clause 9, the terms “Personal Data”, “Processing”, “Controller”, “Processor” shall have the same meaning as in the Data Protection Legislation and any amendment or re-enactment thereof from time to time.
9.2 Each Party and its respective Affiliates (as appropriate) shall ensure that in the performance of its obligations under the Contract comply at all times with its obligation and all applicable requirements under the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
9.3 You must maintain copies of all Your Data inputted into the Software. Diagnostax follows Good Industry Practices to prevent loss of Your Data but does not guarantee that there will be no loss of Your Data. Diagnostax expressly excludes all Liability for any loss of Your Data irrespective of how it is caused.
9.4 You grant Diagnostax a licence to use, transmit, copy, store and back-up Your Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of the Services to You.
9.6 In the event of any loss or damage to Your Data, Your sole and exclusive remedy against Diagnostax shall be for Diagnostax to use reasonable endeavours to restore Your Data that is lost or damaged from the latest back-up maintained by Diagnostax. Diagnostax shall not be liable or responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
9.7 The Parties acknowledge that:
9.7.1 if Diagnostax processes any Personal Data on Your behalf when performing its obligations under the Contract, You are the Controller and Diagnostax are the Processor for the purposes of the Data Protection Legislation.
9.7.2 You acknowledge and agree that any of Your Data may be transferred or stored outside the European Economic Area (as defined in the Data Protection Legislation) or the country where You and Your Authorised Users are located in order to carry out the Services and Diagnostax’s obligations under the Contract.
9.8 You shall own all right, title and interest in and to all of Your Data that is not Personal Data and You shall have sole responsibility and Liability for the legality, reliability, integrity, accuracy and quality of all Your Data.
9.9 Without prejudice to the generality of clause 9.8, You will ensure that You have all the necessary and appropriate consents and notices in place to allow lawful transfer of any Personal Data to Diagnostax for the duration and purposes of the Contract and Diagnostax may (on Your behalf) lawfully use, process and transfer the Personal Data in accordance with the terms of the Contract, including, without limitation, transfer Personal Data to the Tax Panel.
9.10 You hereby consent and authorise Diagnostax and its Affiliates (as appropriate) to process, use and transfer any of Your Data to the extent necessary for the purposes of
9.10.1 carrying out its obligations under the Contract, including, without limitation, to resolving a support or maintenance problem for You; or
9.10.2 referring You or Your referred tax issue of an End Customer identified by use of the Services to the Tax Panel; or
9.10.3 allowing Diagnostax to provide ongoing proactive support to You and to improve functionality of the Services and/or the Software.
9.11 You and Your Affiliates (as appropriate) will not negligently, wilfully or in breach of the Contract, cause Diagnostax or its Affiliates to be in breach of any part of the Data Protection Legislation, whether by reason of an act or omission by You, Your Representatives or any person acting for Your behalf;
9.12 Without prejudice to the generality of clause 9.8, Diagnostax shall, in relation to any Personal Data processed in connection with the performance by Diagnostax of its obligations under the Contract:
9.12.1 ensure that all its Representatives who have access to or process Personal Data are obliged to keep the Personal Data confidential;
9.12.2 assist You, at Your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
9.12.3 notify You without undue delay on becoming aware of a Personal Data breach.
9.13 Each Party and its respective Affiliates (as appropriate) shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
9.14 You will indemnify Diagnostax and its Affiliates against all losses, Liabilities (including fines, regulatory sanctions and reasonable costs relating to an investigation, action or proceeding by a regulatory authority), reasonable costs (including legal and other professional costs and costs of enforcement to the extent reasonable), damages and expenses that Diagnostax or its Affiliate do or will incur or suffers as a result of any claims, proceedings or actions made against Diagnostax or its Affiliate by any regulatory authority in each case arising out of or in connection with any breach by You, Your Representatives or Your Affiliates (as appropriate) under this clause 9.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You acknowledge and agree that Diagnostax own all the Intellectual Property Rights, interests and title in the Services, the Software, the Website and in any documentation and content on social media including, without limitation, videos relating to and connected with the Services and You further acknowledge that all the aforementioned remain exclusive property of Diagnostax. Other than as expressly stated, the Contract does not grant You any Intellectual Property Rights or any other rights or licences in respect of the Services or the Software.
10.2 You shall not sub-license, assign or otherwise transfer the right granted in clause 3.1 to
10.2.1 any of Your Affiliates; or
10.2.2 any of Your Representatives; or
10.2.3 any third party.
10.3 Diagnostax confirms that it has all the rights in relation to the Services, the Software, the Website and to any documentation and any content on social media, including, without limitation, videos relating to and connected with the Services and the Software, such rights being necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
10.4 You shall immediately give written notice to Diagnostax of any actual, threatened or suspected infringement of any of Diagnostax’s Intellectual Property Rights in connection with the Services and the Software of which You become aware.
Confidential Information is:
all information exchanged between the Parties to this Contract in any form whatsoever, including, without limitation, all written, oral, visual, audio information, and all information recorded in writing, or electronic form or on tape or disk or in any other medium or by any other method or process; and
copies of information described in clause 11.1.1, including any document, electronic or audio file, note extract, analysis or any other representation or recording which contains, reflects or is derived from such information.
11.2 The Recipient undertakes:
11.2.1 to use Confidential Information solely in connection with the performance of its obligations in relating to or in connection with the Contract;
11.2.2 to keep Confidential Information in strict confidence at all times;
11.2.3 to not, without the prior written consent of the Disclosing Party, disclose any Confidential Information furnished to it to anyone other than the Recipient’s Representatives, professional advisers or its Affiliates who have a legitimate need to know such Confidential Information:
in order to perform their duties relating to or in connection with the Contract;
in order to for You to fulfil Your obligations under the Contract; or
to the extent that they are required to use or access the Services because they are Authorised Users in in accordance with the Contract;
to not disclose or make available Confidential Information in whole or in part to any third party, except as expressly permitted by the terms of the Contract;
to apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure copying or use;
to inform, to the extent permitted by law, the Disclosing Party as soon as reasonably practicable upon becoming aware or suspecting that a person who is not Recipient’s Representative or an Affiliate has become aware of Confidential Information;
to make copies of Confidential Information only where it is strictly necessary for the performance of its obligations relating to or in connection with the Contract;
ensure that any of its Representatives or Affiliates to which it discloses Confidential Information is aware of all of the Recipient’s obligations under this clause 11;
take reasonable steps to ensure compliance by its Representatives or Affiliates of the obligations imposed on the Recipient under the Contract, as if they were the Recipient and not to distribute or disclose Confidential Information in violation of this clause 11; and
11.2.9 to, so far as is reasonably practicable, to keep separate all Confidential Information from its documents and other records.
11.3 The Recipient further acknowledges that any Confidential Information disclosed hereunder to its Affiliates or its Representatives by or on behalf of the Disclosing Party shall be deemed to be disclosure of such Confidential Information to the Recipient for the purpose of this clause 11.
11.4 The obligations and restrictions contained in this clause 11 shall not apply to any information which:
11.4.1 the Recipient can show had entered the public domain at the time Confidential Information was disclosed to them, or at any time thereafter, not as a result of any breach of clause11.2;
11.4.2 the Recipient can show was in its lawful possession at the time Confidential Information was disclosed to them and was not acquired by it under an obligation of confidence to the Disclosing Party or a Representative of the Disclosing Party;
11.4.3 the Recipient can show was received by it, after the time Confidential Information was disclosed to it, from a third party (other than the Disclosing Party or a Representatives of the Disclosing Party) who could lawfully do so and who did not derive it from Confidential Information disclosed by the Disclosing Party or a Representative of the Disclosing Party;
11.4.4 the Parties have agreed in writing shall not be subject to the obligations and restrictions contained in this clause 11; or
11.4.5 can be demonstrated by written evidence to the reasonable satisfaction of the Disclosing Party to have been developed by the Recipient independently of the Confidential Information disclosed to it by the Disclosing Party.
11.5 In the event the Recipient or its professional advisers or Representatives, is required by any court, legislative, regulatory or administrative body, including any recognised stock exchange, to disclose any Confidential Information, then the Recipient shall, to the extent that it is lawful to do so, use its reasonable endeavour to:
11.5.1 promptly inform the Disclosing Party before such disclosure is made, so that an appropriate order and/or other action can be sought and/or other action can be taken if possible (and if it is not lawful to inform the Disclosing Party prior to disclosure, the Recipient shall inform the Disclosing Party as soon as it becomes lawful to inform the Disclosing Party);
11.5.2 reasonably co-operate with the Disclosing Party or its professional advisers or its Representatives in seeking any order and/or other action to challenge the validity of the requirement to disclose such Confidential Information; and
11.5.3 disclose to the relevant body only that portion of the Confidential Information which it is legally required to disclose and shall use reasonable efforts to obtain assurances that confidential treatment will be given to such Confidential Information.
11.6 A Party may disclose Confidential Information, if, and to the extent that it is requested by any regulatory agency or authority, provided that, to the extent that it is lawfully and practically permitted to do so, the Recipient notifies the Disclosing Party promptly upon becoming aware of any such request.
11.7 The Recipient shall not be held liable for any disclosure required under clauses 11.5 and 11.6 above unless: (a) such disclosure was caused by or resulted from a previous disclosure that was not permitted under this clause 11; or (b) with respect to clause 11.5, such disclosure exceeded the portion it was legally required to disclose.
11.8 Each Party reserve all rights in their Confidential Information. No rights or obligations in respect of a Party’s Confidential Information, other than those expressly stated in the Contract, are granted to the other Party, or to be implied from the Contract.
11.9 The nature and extent of any Confidential Information disclosed under the Contract shall be at the sole discretion of the Disclosing Party and its Representatives.
11.10 On termination of the Contract for whatever reason and upon request at any time by the Disclosing Party (and only until the end of such time), the Recipient shall promptly:
11.10.1 return or destroy all Confidential Information provided to it by the Disclosing Party, its Affiliate, its professional advisers or its Representatives, which is in a tangible form (including, without limitation, hard copy documents of any kind);
11.10.2 delete or made permanently unusable all Confidential Information provided to it by the Disclosing Party, its Affiliates, its professional advisers or its Representatives which is stored in electronic form, whether or not on portable devices (including without limitation, portable memory sticks, CDs, and laptop hard drives) and shall procure the same of any relevant Representatives, professional advisers and Your Affiliates (if appropriate); and
11.10.3 at the request of the Disclosing Party, certify in writing to the Disclosing Party that it has complied with the requirements of this clause 11.10, provided the Recipient may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause 11.10 shall continue to apply to any such documents and materials retained by the Recipient.
You acknowledge and agree that Diagnostax may use Your Data and/or Confidential Information obtained from You, Your Representatives or Your professional advisers for the following purposes:
11.11.1 admistering Your accounts, invoicing and sharing Your Data with its Affiliates; and
notifying you of changes to the Services and/or the Software and enhancements to or offers in relation to the Services.
Diagnostax may, unless You request Diagnostax not to do so on the Subscription Order Form, process Your Data for the purposes of sending information to You from time to time about any similar products or services to the Services and/or the Software which may be of interest to You.
11.13 The provisions of this clause 11 shall continue to apply after termination of the Contract (however arising) in accordance with clause 16.2.
12.1 Without prejudice to any other rights of Diagnostax, You shall defend, indemnify and hold Diagnostax and its Affiliates harmless against:
12.1.1 all claims, demands, actions, proceedings, losses, damages, expenses and costs (including, without limitation, legal and other professional fees, costs and expenses) arising out of or in connection with Your (including Your Representatives) use of or reliance on the Services and the Software; and
12.1.2 all costs, damages, charges or expenses however arising under the Contract.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in the Contract:
13.1.1 You assume sole responsibility for any results obtained from the use of the Services by You and for any conclusions drawn from such use. Diagnostax shall have no Liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Diagnostax by You in connection with the Services, or any actions taken by Diagnostax at Your direction;
13.1.2 Diagnostax gives no warranty relating to or in connection with the Services and/or the Software. For the avoidance of doubt, 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 by Diagnostax; and
13.1.3 the Services are provided to You on an “as is” basis.
13.2 You acknowledge and agree that Diagnostax shall not be responsible nor have any Liability for any failure to provide the Services to the extent that it arises out of or is contributed by:
13.2.1 any failure of Your own infrastructure, software, computer systems or network systems;
13.2.2 any acts or omissions of You or any of Your Representatives, contractors or professional advisers;
13.2.3 any acts or omissions of the End Customer;
13.2.4 any faults, failures, connections or defects from a supplier of Diagnostax, including, without limitation, IT security breaches, data breaches, cyber-attacks (including ransomware and hack attacks), transmission of viruses, data connectivity problems, service degradation and slow systems due to high usage;
13.2.5 any defect or malfunction caused by Your improper use or operation of the Services and/or the Software;
13.2.6 Your use of the Services and/or the Software in breach of the Contract;
13.2.7 any use of the Services or the Software in conjunction with any software, systems or infrastructure not provided by Diagnostax, or interfaces with any software, systems or infrastructure where these interfaces are not provided by Diagnostax;
13.2.8 any use of the Services by anyone who has not been appropriately trained; or
13.2.9 failure to implement or agree to the implementation of any maintenance for any reason, including but not limited to, correcting any faults or providing improvements.
13.3 You acknowledge and agree that You shall be liable for all costs, losses, expenses and Liabilities suffered or incurred by Diagnostax as a result of Your failure to implement adequate IT controls and IT security in accordance with Good Industry Practice over the use of the Services.
13.4 You acknowledge and agree that You shall be liable at all times for the acts and omissions of Your Representatives and any reference to Your Liability shall extend to Liability of Your Representatives.
13.5 If Diagnostax’s performance of its obligations under the Contract is prevented or delayed by any act or omission of You or Your Representatives, Diagnostax shall not be liable for any costs, damages, charges, expenses or losses sustained or incurred by You that arise directly or indirectly from such prevention or delay.
13.6 Nothing in the Contract excludes Yours and Diagnostax Liability for:
13.6.1 death or personal injury caused by its negligence; or
13.6.2 fraud or fraudulent misrepresentation.
13.7 Subject to clause 13.6:
13.7.1 Diagnostax shall not be liable under any circumstances whatever, whether in tort (including for negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise for any loss of profits, loss of sales, loss of revenue, loss of business, loss of agreements or contracts, depletion of goodwill and/or similar losses or loss or corruption of data or information, pure economic loss, or for any special, indirect or consequential loss, any loss arising out of the lawful termination of the Contract or any decision not to renew its term, for any loss that is an indirect or secondary consequence of any act or omission of Diagnostax; for any damage resulting directly or indirectly from any use of, or reliance on, the Services or the Software and for any costs, damages, charges or expenses however arising under the Contract;
13.7.2 Diagnostax shall not be liable to You for any breach of its obligations under the Contract by any reason outside its control including, without limitation, the failure of any third party to provide network capacity, hosting services, data centre and/or connectivity to Diagnostax;
13.7.3 Diagnostax shall not be liable for any costs, losses, expenses or other Liabilities, including those sustained by You as a result of Your fraudulent, illegal or unauthorised use of the Services and the Software; and
13.7.4 Diagnostax’s total aggregate Liability in contract, tort (including negligence), for breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with its performance or contemplated performance of the Contract or as a result of Diagnostax’s negligence or failure to comply with these Terms shall, in each Contract Year, be limited to the Subscription Fee paid by You in the preceding Contract Year.
Without Prejudice to clause 4.3, the Contract shall, unless otherwise terminated as provided in clause 15, commence on the Commencement Date and shall continue for the Minimum Term and shall automatically continue and renew after expiry of the Minimum Term for further successive periods of twelve (12) months (each a “Renewal Period”) and the Minimum Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
15.1 You may terminate the Contract by giving not less than thirty (30) days prior written notice to Diagnostax, such notice to become effective no earlier than the expiry of the Minimum Term or Renewal Period (as appropriate), failing which the Contract will renew automatically for a further Renewal Period.
15.2 In the event of termination of the Contract by You other than under clause 15.3 and clause 15.4, at any time before the expiry of the Minimum Term or if the Contract has continued beyond the Minimum Term then before expiry of the Renewal Period, You shall indemnify Diagnostax in full against all losses incurred by Diagnostax including payment of:
15.2.1 any outstanding Charges including any late payment interest and late payment fee in accordance to clause 5.8.2;
15.2.2 Charges that would otherwise have been paid by You had the Contract continued till the expiry of the Minimum Term or Renewal Period (as appropriate); and
15.2.4 expenses incurred by Diagnostax as a result of such changes or cancellation.
15.3 Notwithstanding clause 15.1, You are entitled to terminate the Contract in the first thirty (30) days from the Commencement Date upon giving prior written notice to Diagnostax, such notice to become effective no later than the thirtieth (30) day from the Commencement Date, failing which the Contract will continue until terminated in accordance with this clause 15.
15.4 Without prejudice to any of Diagnostax’s other rights under the Contract or otherwise and without Diagnostax having any Liability to You, Diagnostax shall be entitled at any time and for any reason whatsoever to terminate the Contract by giving not less than thirty (30) days written notice to You without further Liability to You. For the avoidance of doubt, in the event Diagnostax terminates the Contract under this clause 15.4, You shall not be liable to pay for the Charges applicable for the remainder of any Minimum Term or Renewal Period (as appropriate) in respect of the Contract.
15.5 Without affecting any other rights or remedies available to it, Diagnostax may terminate the Contract with immediate effect by giving written notice to You if:
15.5.1 You commit a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) You fail to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
15.5.2 You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or admit inability to pay Your debts or (being a company) are deemed unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) are deemed either unable to pay Your debts or as having no reasonable prospects of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) have any partner to whom any of the foregoing apply; or
15.5.3 You commence negotiations with all or any class of Your creditors with a view to rescheduling any of Your debts, or make a proposal for or enter into any compromise or arrangement with Your creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or Your solvent reconstruction; or
15.5.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with Your winding up other than for the sole purpose of a scheme for Your solvent amalgamation with one or more other companies or Your solvent reconstruction; or
15.5.5 a notice of intention to appoint an administrator is given or if an administrator is appointed over You; or
a floating charge holder over Your assets has become entitled to appoint or has appointed an administrative receiver; or
a person becomes entitled to appoint a receiver over Your assets or a receiver is appointed over Your assets; or
You are subject to any event or proceedings in any jurisdiction to which You are subject that has an effect equivalent or similar to any of the events mentioned in clauses 15.5.2 to 15.5.7 (inclusive); or
You suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part if Your business.
15.6 In addition to the rights conferred under clauses 15.5.4 to 15.5.7 (inclusive):
15.6.1 Diagnostax may terminate the Contract, or its obligations under any contract it may have with You for services, at any time upon giving not less than fourteen (14) days written notice to You if You fail to pay any Charges due under the Contract which are not the subject of a bona fide dispute and which remain outstanding for a period of thirty (30) days after they have become due for payment; and
15.6.2 Diagnostax may without prejudice to its other rights or remedies, suspend the provision of the Services and the right to use the Software (or any part thereof) if it would otherwise be entitled to terminate the Contract.
15.7 If the Contract is terminated under clause 15.6.1 (“Discontinuance Termination”), in addition to any Charges, late payment interest and late payment fee or sums due under the Contract, Diagnostax shall be entitled to invoice You and You shall pay to Diagnostax:
15.7.1 100% of the full Subscription Fee (without any discount) payable for the term of the Contract where Discontinuance Termination occurs, irrespective of whether the Discontinuance Termination occurs prior to the expiry of the Minimum Term or a Renewal Period (as appropriate); and
15.7.2 expenses incurred by Diagnostax as a result of such Discontinuance Termination.
15.8 Any termination of the Contract under this clause 15 is without prejudice to any other rights or remedies Diagnostax may be entitled to under the Contract or at law. It does not affect any accrued rights or Liabilities of Diagnostax, nor any provision which is expressly or by implication intended to come into force on, or continue in force after, termination.
15.9 For the avoidance of doubt, in the event of termination of the Contract for any reason, You shall not be entitled to a refund of any pre-paid sums (including without limitation, the Charges) whether such sums are attributable to the period before, including or after the date the Contract terminates.
16. CONSEQUENCES OF TERMINATION
16.1 Upon termination of the Contract for any reason:
16.1.1 You shall immediately:
cease use of the Services, Support Services and the Software;
pay all sums due and owing to Diagnostax; and
deliver up all copies of Diagnostax’s Confidential Information supplied by Diagnostax for the purposes of providing the Services and one of Your directors shall certify to Diagnostax that it has complied with this clause 16.1.1(c).
Diagnostax shall invoice all fees, additional charges, and expenses (including, without limitation, late payment interest and late payment fee (if appropriate) that have validly accrued and are not the subject of a bona fide dispute or have become due as a result of the termination but have not yet been invoiced and any and all remaining Charges which are scheduled for payment during the Subscription Term of the Contract.
16.2 Save as provided below, each Party’s rights, liabilities and obligations under the Contract shall cease upon termination of the Contract. Each Party’s accrued rights and liabilities and the rights and obligations of each Party that are expressly or by implication intended to come into force upon, or remaining in force following the termination of the Contract (including, clauses 1 (Interpretation), clause 2 (Subscription), clause 3 (Services), clause 4 (Additional Authorised Users), clause 5 (Charges and Payment), clause 6 (Set-Off), clause 7 (Your Obligations and Warranties) and clause 8 (Diagnostax’s Obligations), clause 9 (Your Data), clause 10 (Intellectual Property Rights), clause 11 (Confidentiality), clause 12 (Indemnity), clause 13 (Limitation of Liability), clause 14 (Term), clause 15 (Termination), clause 16 (Consequences of Termination), clause 17 (Force Majeure), clause 19 (Assignment And Other Dealings), clause 20 (Dispute Escalation Procedure), clause 21 (Notices), clause 22 (Variation), clause 24 (Waiver), clause 25 (Severance), clause 26 (No Partnership Or Agency), clause 27 (Third Party Rights), clause 28 (Entire Agreement), and clause 29 (Governing Law and Jurisdiction)), right to claim damages in respect of any breach of the Contract which existed at or before the date of termination) shall survive any termination of the Contract.
17. FORCE MAJEURE
17.1 Diagnostax shall not be in breach of the Contract nor liable for delay, prevention or hindrance in performing, or failure to perform its obligations under the Contract if such delay or failure is caused by a Force Majeure Event.
17.2 For avoidance of doubt, any failure or delay by Diagnostax in performing its obligations under the Contract which results from a failure or delay by its agent, contractor, sub-contractor or its supplier shall be regarded as due to a Force Majeure Event.
17.3 Where the performance by Diagnostax of its obligations under the Contract is delayed, hindered or prevented by a Force Majeure Event, Diagnostax shall notify You in writing as soon as reasonably practicable specifying the nature of the Force Majeure Event and stating the anticipated delay in the performance of the Contract. Diagnostax shall suspend the Contract and have its time for performance of its affected obligation extended by a period equal to the delay caused by such circumstances but shall use reasonable endeavours to mitigate the effect of such circumstances.
17.4 Where the performance by Diagnostax is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, then Diagnostax shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations.
17.5 Diagnostax shall notify You as soon as reasonably practicable after the Force Majeure Event ceases or no longer causes Diagnostax to be unable to comply with its obligations under the Contract.
17.6 Where any circumstances referred to in clause 17.1 and clause 17.2 continue or is likely to continue for a period of ninety (90) days or more, then You may give thirty days (30) notice to terminate the Contract.
18. ANTI-BRIBERY AND ANTI-CORRUPTION
18.1 Each Party shall in relation to the Contract:
18.1.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
18.1.2 not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
18.1.3 have and maintain in place throughout the term of the Contract its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and
18.1.4 promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received in connection with the performance of the Contract.
18.2 Breach of this clause 18 shall be deemed a material breach of the Contract entitling the non-defaulting Party to terminate the Contract without prejudice to any other rights the Party may have in respect of such breach.
19. ASSIGNMENT AND OTHER DEALINGS
19.1 You shall not assign, transfer, charge, sub license, sub-contract or otherwise dispose of or encumber the Contract, or any of Your rights or obligations under it.
19.2 Diagnostax may at any time, without Your prior written consent, assign any benefit, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20. DISPUTE ESCALATION PROCEDURE
20.1 Save that nothing in this clause 20 will prevent Diagnostax from seeking injunctive or similar relief or taking any actions in relation to the recovery of debts, disputes or differences which may arise between the Parties in connection with the Contract shall, in the first instance, be dealt with and determined as follows:
20.1.1 each Party shall nominate a representative who will be authorised to deal with the management, negotiation and settlement of any dispute or difference arising under or in connection with the Contract (“Nominated Representative”). Each Party may change the identity of its representative at any time during the term of the Contract;
20.1.2 each Party will refer any dispute or difference that arises under or in connection with the Contract to its Nominated Representative appointed in accordance with clause 20.1.1 who shall be responsible for the escalation of the dispute within that Party’s organisation and shall notify the other Party’s Nominated Representative in writing of the reason for the dispute or difference. Any such notifications shall include reasonable details of the relevant dispute or difference (“Dispute Notice”);
20.1.3 the Nominated Representatives shall meet within five (5) Business Days of receipt of the Dispute Notice from the relevant Nominated Representative to agree a resolution or action(s) required by each Party to resolve the dispute or difference;
20.1.4 if any dispute or difference has not been settled or a course of action for its settlement not been agreed within twenty-one (21) Business Days of the date of the Dispute Notice, each Nominated Representative shall procure that one of their then board directors shall consider and endeavour to agree to a resolution of such dispute or difference on one separate further occasion. The Parties shall procure that such meeting between each Party’s board directors takes place as soon as reasonably practicable, taking into account the timescale in which the matter in dispute or difference should be resolved so as not to impede the performance of the Contract;
20.1.5 if the dispute or difference, considered by each Party’s then board directors, is not resolved within fourteen (14) Business Days of being referred to each Party’s board directors or resolved to the satisfaction of both the Parties, the dispute or difference may be referred by either Party to the courts of England under clause 29.
21.1 Any notice or other document to be served under the Contract must be in writing, and a notice or other document will be effectively served if served in any one of the following ways (and shall be deemed to have been served at the time stated):
Delivery method - Delivery by hand/personal delivery.
Deemed delivery date and time - On signature of a delivery receipt or at the time the notice is left at the address – upon actual delivery or upon refusal to accept delivery.
Delivery method - Pre-paid first class, recorded delivery post or other next working day delivery service (providing proof of delivery).
Deemed delivery date and time - On the second Business Day after posting.
Delivery method - Fax
Deemed delivery date and time - Upon receipt of an error-free reception code at the time of transmission.
Delivery method - Email
Deemed delivery date and time - At the time of transmission provided no out of office response is received.
21.2 For the purpose of clause 21.1 and calculating deemed receipt:
21.2.1 references to time are to local time in the place of deemed receipt; and
21.2.2 if deemed receipt occurred on a day other than a Business Day, then deemed receipt is deemed to take place at 09:00 on the first following Business Day.
21.3 If a notice or communication is deemed to be served before 09:00 on a Business day it will be deemed to be served at 09:00 on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 17:00 on a Business Day it will be deemed to be served at 09:00 on the immediately following Business Day.
21.4 Any notice or other document to be served under the Contract shall be addressed to a director or partner of the recipient Party and sent to the address the recipient has notified the other Party in writing from time to time.
Diagnostax reserves the right to vary any or all of the Terms at its discretion from time to time, such variations to take immediate effect upon posting on the Website and shall prevail without further notice to You over all other versions and shall apply to any Contracts entered into before or after the date of such posting. It is your sole responsibility to check the Terms from time to time to view any such changes.
Subject to Your consent, Diagnostax may advertise or publicly announce on its Website and in its publicity and marketing materials, including without limitation, in press releases, cases studies and general marketing literature, that it is providing the Services to You. Such advertisement or public announcement may include placing a copy of Your logos or other brand images on the Website or using Your logos or other brand images in its own publicity and marketing materials.
24.1 A waiver of any right or remedy under the Contract or by law, or any consent given under the Contract is only effective if given in writing by the waiving or consenting Party and shall not be deemed a waiver of any other breach or default. It only applies in the circumstances for which it is given and shall not prevent the Party giving it from subsequently relying on the relevant provision.
24.2 A failure or delay by a Party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, prevent or restrict any further exercise of that or any other right or remedy under the Contract. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
25.1 If any provision or part-provision of the Contract 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 25 shall not affect the legality, validity and enforceability of the rest of the Contract.
25.2 If any provision or part-provision of the Contract is deemed deleted under clause 25.1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
26. 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, but not limited to, the making of any representation or warranty, the assumption of any obligation or Liability and the exercise of any right or power).
27. THIRD PARTY RIGHTS
Except as expressly stated in the Contract, the Contract shall not create nor confer any rights that shall be enforceable by anyone 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.
28. ENTIRE AGREEMENT
28.1 The Contract (including its schedule(s)) constitutes the entire agreement between the Parties on the subject matter of the Contract and supersedes and extinguishes all previous agreement, promises, assurances, warranties, representations, contracts, arrangements and understandings between them, whether written or oral, relating to its subject matter.
28.2 Each Party acknowledges that in entering into the Contract it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract.
29. GOVERNING LAWAND JURISDICTION
29.1 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 and Wales.
29.2 The Parties irrevocably agree that the courts of England and Wales 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).
Support Services Policy
The Support Services provided by Diagnostax to You shall be in accordance with its Support Services Policy.
The specific Support Services provided to You are set out in the Subscription Order Form.
Diagnostax may amend its Support Services Policy in its sole and absolute discretion from time to time.
Where permitted by law, Diagnostax may receive a fee, commission or other reward from a member of the Tax Panel. This is in respect of a direct referral of a client you have requested tax advice for. This would only be payable when the client engages with the member of the Tax Panel for any tax advice.
The Support Services to You do not include the diagnosis and rectification of any fault arising from:
any failure of Your own infrastructure, software, computer systems, network systems or I.T. security;
any of Your or Your Representatives acts or omissions;
any fault or failure not attributable to Diagnostax;
any acts or omissions of the End Customer;
any faults, failures, defects or connection problems from a telecommunication, third party, supplier or hosting services provider of Diagnostax, including, without limitation, IT security breaches, data breaches, cyber-attacks (including ransomware and hack attacks), transmission of viruses, data connectivity problems, service degradation and slow systems due to high usage;
any defect or malfunction caused by Your improper use or operation of the Services and/or the Software or in breach of the Contract;
any use of the Services and the Software in conjunction with any software, systems or infrastructure not provided by Diagnostax, or interfaces with any software, systems or infrastructure where these interfaces are not provided by Diagnostax;
any use of the Services and the Software by anyone who has not been appropriately trained;
failure to implement or agree to the implementation of any releases or maintenances;
any failure of the Services and the Software at any time other than as a direct result of Diagnostax’s negligence;
any acts or omissions of Diagnostax’s agents or contractors;
any security breaches and data breaches either at the data centre, or which affects the data centre, or which are not due to a failure by Diagnostax to comply with its obligations in the Contract;
any failure of third-party software at the data centre; and
failure of the data centre or failure of any cabling, networking or telecommunications or hosting services equipment at the data centre.