Terms and Conditions of Membership
(these “Terms and Conditions”)
In these Terms and Conditions:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
those pages of the Website accessible only by the use of login credentials allocated to the Customer by PAT, by which the Customer may access the Materials;
PAT’s acknowledgement of the Customer’s Order;
“Breach of Duty”
the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
any day other than: (i) a Saturday; (ii) a Sunday; or (iii) a day when the clearing banks in the City of London are not physically open for business;
between the hours of 9am and 5pm (local time in London) on Business Days;
the monthly amount plus VAT at the relevant rate for each membership level, as listed on the Website from time to time, payable by a Customer to PAT for access to the Materials;
the Customer’s order for access to Materials in accordance with these Terms and Conditions, which PAT accepts in accordance with Clause 3.5;
has the meaning given to it in Clause 11.1;
any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to the Contract which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the Commencement Date, together with any reproductions of such information or any part of it (and PAT’s “Confidential Information” shall be considered to include the Materials and any information relating to the Materials);
the customer who agrees to purchase from PAT access to the Materials;
the clients that engage the Customer to provide accountancy and tax services, and the prospective clients of the Customer, and anybody that the Customer, its employees or workers provides tax advice to.
“Event of Force Majeure”
has the meaning given to it in Clause 13.1;
“Intellectual Property Rights”
copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of , 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;
shall mean liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Contract, including liability expressly provided for under the Contract or arising by reason of the invalidity or unenforceability of any term of the Contract (and, for the purposes of this definition, all references to “the Contract” shall be deemed to include any collateral contract);
the software provided by PAT and only accessible by logging-in, the tax resources and software developed at AVN and accessible to certain membership levels by logging-in, the tax resources and materials made available by PAT on the Website, accessible only by logging-in to an account on the Website using login credentials allocated by PAT, for the benefit of certain of its customers that pay for such access;
ProActivTax Limited, a company registered in England and Wales with registered number 09540555 and registered office at 27 The Spinney, Wakefield. West Yorkshire. WF2 6JN;
the order form available on the Website that the Customer submits to PAT or the Website to purchase access to the Materials;
PAT and the Customer, and “Party” shall mean either of them; and
the website with its uniform resource locator at www.ProActivTax.co.uk;
1.2 Clause headings shall not affect the interpretation of this Contract;
1.3 a “person”includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns;
1.4 unless the context otherwise requires:
1.4.1 words in the singular shall include the plural and in the plural shall include the singular; and
1.4.2 a reference to one gender shall include a reference to the other genders;
1.5 a reference to any party shall include that party's personal representatives, successors and permitted assigns;
1.6 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.7 references to “Clauses” are to the Clauses of these Terms and Conditions; and
1.8 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. Effect of these Terms and Conditions
2.1 These Terms and Conditions shall apply to all Orders and to all Contracts made or to be made by PAT for the sale of access to the Materials, and subsequent access to the Materials, either directly or through the Website. When the Customer submits an Order to PAT or the Website, this shall always constitute the Customer’s unqualified acceptance of these Terms and Conditions.
2.2 The Customer shall be responsible at all times for the access to the Materials made by its employees or other workers to whom it provides the login details for the Customer’s Account. The Customer shall procure that all such employees and other workers are aware, and understand the contents, of these Terms and Conditions and, if any such employee or other worker commits a breach of these Terms and Conditions, it shall be considered a breach of these Terms and Conditions, and the Contract, by the Customer directly. The Customer shall indemnify, and keep indemnified, PAT 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 professional costs and expenses) suffered or incurred by PAT arising out of or in connection with any breach of the Contract by the Customer or any of its employees or other workers.
3.1 The Customer can submit an Order, where made available by PAT from time to time, through the Website, by following the instructions on the Website as to how to submit an Order and for making changes to that Order before it is submitted.
3.2 The Customer must ensure that all details it provides to PAT in the Order (and the online payment process) are correct. PAT reserves the right to validate any such details before continuing with the Order process.
3.3 When the Customer submits the Order to PAT, it agrees that it does so subject to these Terms and Conditions, as are current at the date on which the Order is submitted. The Customer should keep a copy of these Terms and Conditions as are current at the date on which the Order is submitted.
3.4 PAT shall not be obliged to provide login details for access to an Account to the Customer, and the Customer’s Order remains valid as an offer, until PAT has accepted that Order. Unless expressly stating that PAT accepts the Order, an email, letter, fax or other Acknowledgement of an Order by PAT is purely for informational purposes and does not constitute PAT’s acceptance of an Order. PAT may, in its discretion, refuse to accept an Order from a Customer for any reason.
3.5 The Contract shall be formed and PAT shall be legally bound to provide to the Customer access to an Account when PAT’s accepts the Customer’s Order. Acceptance takes place when PAT sends the Account login details to the Customer. Until the time when PAT accepts the Customer’s Order, PAT reserves the right to refuse to process that Order and the Customer reserves the right to cancel that Order.
3.6 The Customer’s right to access the Account shall commence on PAT’s acceptance of the Customer’s Order in accordance with Clause 3.5, at which point the Customer shall have full access to the Materials by logging into the Account using the username and password that are allocated for that Account in accordance with Clause 4.1.
4.1 In accepting the Customer’s Order, PAT shall allocate and provide to the Customer a username and password for the Customer’s Account. The Customer must (and shall procure that its employees and other workers shall) keep the password confidential and immediately notify PAT if any unauthorised third party becomes aware of that password or if there is any unauthorised access to the Customer’s Account or any other breach of security comes to the attention of the Customer. The Customer agrees that any person to whom its username or password is disclosed, or that they set up as authorised user on the Website is authorised to act as its agent for the purposes of using the Customer’s Account. The Customer is entirely responsible if it does not maintain the confidentiality of its password.
4.2 There shall be no limit to the number of employees or other workers of the Customer that the Customer may allow to access the Account using the login details allocated to the Customer by PAT, provided that such employees and other workers of the Customer given such access by the Customer are based at no more than five of the Customer’s offices for the duration of the Contract. The Customer shall ensure that its employees and other workers access the Account from no more than five locations for the duration of the Contract without the prior written consent of PAT; PAT may permit access to the Account from more than five locations, subject to an increase in the Charges in accordance with PAT’s policies and standards from time to time.
5. The Website and the Materials
5.1 PAT warrants that:
5.1.1 it shall use its reasonable endeavours to make the Website and the Materials available;
5.1.2 it shall use its reasonable skill and care in providing the Materials; and
5.1.3 it has all necessary rights, permissions and consents to enter into the Contract.
5.2 PAT may, in its absolute discretion, from time to time either host the Website and/or the Materials on its own servers or use third party suppliers to do so in whole or in part. The Customer acknowledges that PAT may, from time to time and without prior notice, and without the need for prior agreement, provide reasonable additional obligations or requirements on the Customer or reasonably restrict the Customer’s rights due to the requirements of such third party suppliers. Where reasonably practicable, PAT will endeavour to give the Customer reasonable warning.
5.3 PAT shall use its reasonable endeavours to keep uptime of 99% over any three calendar month period and minimise downtime, but it may be necessary to suspend or restrict the Website and/or access to the Materials at any time for any reason including for any urgent or planned maintenance. PAT does not warrant that the Website and/or access to the Materials will be uninterrupted or error-free or that they will be available at any particular speed or that they will meet the individual requirements of the Customer. In addition, if a third party provider of hosting services to PAT suspends provision of access to its servers at any time, the provision of the Website and/or access to the Materials by PAT may be suspended.
5.4 PAT is not responsible for any services, software, equipment or connection not expressly stipulated in these Terms and Conditions that PAT will provide.
5.5 PAT shall use its reasonable endeavours to correct any errors or omissions in the Website and/or the Materials as soon as practicable during Business Hours after receiving full and clear information of them. However, since PAT does not guarantee that the Website and/or the Materials will be free from faults, PAT shall provide telephone and email support to Customers to use during Business Hours for PAT to deal with any faults and also for answering queries from Customers. PAT shall use its reasonable endeavours to respond to a support request within a reasonable time, but PAT cannot guarantee any particular result or outcome or within a particular time. In particular, without limitation, PAT may need to obtain support in turn from third party subcontractors who assist PAT in the provision of the Website and/or the Materials.
5.6 PAT has the right to make any changes to the Materials which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Materials, and PAT shall notify the Customer in any such event.
5.7 PAT shall be responsible for the contents of the Materials; however, the Customer shall be responsible for any training, advice, decision or implementation (or failure to implement), by the Customer or its employees or other workers relating to those Materials, and, subject to Clause 2, PAT shall have no Liability for the results of such training, advice, decision or implementation (or failure to implement). PAT shall not be held responsible for how the materials are used with the Customers Clients by the Customer or its employees or other workers, or the advice provided to the Customers Clients and PAT shall have no liability in this respect. It is the Customer’s responsibility to ensure that:
5.7.1 any training, advice, decision or implementation (or failure to implement) made by the Customer as a result of access the Materials is made in the Customer’s best interests; and
5.7.2 the process of training, advice, making any decision or implementation (or failure to implement) by the Customer is made in compliance with the Customer’s relevant risk strategy; and
5.7.3 the advice given to Customers Clients is appropriate for their circumstances and possible within the legislation;
and the Customer bears the sole responsibility and Liability for the consequences of any such training, advice, decision or implementation (or failure to implement) and advice given to the Customers Clients.
5.8 Subject to Clause 2, PAT shall not have any Liability, and shall not be responsible, to the extent that any defects or errors or issues in the Website and/or the Materials are caused by any:
5.8.1 acts or omissions, in either case, by the Customer or on the Customer’s behalf (other than with PAT’s specific express prior written consent); or
5.8.2 changes, modifications, adjustments, amendments or alterations to the Materials or any attempt at doing so; in any such case, by the Customer or on the Customer’s behalf (other than with PAT’s specific express prior written consent).
5.9 Subject to Clause 12.2, PAT shall not have any Liability, and shall not be responsible, for any delays or failure to perform accurately its obligations under the Contract if the same has been caused by any failure or delay by the Customer or any breach by the Customer of the Contract.
5.10 Subject to Clause 12.2, PAT, its employees, and associated businesses have no liability for the tax advice provided to Customer Clients by the Customer, its employees or its workers, or advice withheld from Customer Clients, or how the materials are used with Customer Clients or the message provided.
5.11 Any remedies available to the Customer for breach of the Contract by PAT shall be conditional on:
5.11.1 the Customer providing to PAT full details of any breach as soon as it is reasonable practicable, and in any event not later than seven days, after becoming aware of the problem;
5.11.2 the Customer providing to PAT full information, assistance and co-operation to resolve the problem; and
5.11.3 payment of all Charges and other sums due under the Contract having been received in full by PAT from the Customer by the due date.
5.12 Except where expressly provided for in these Terms and Conditions, PAT excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Website and the Materials.
6. Customer’s obligations
6.1 The Customer shall:
6.1.1 only use the Materials for the Customer’s business use, being the legitimate purposes of the Customer’s principal business;
6.1.2 not use, store, copy, download, sell, resell, redistribute or deal with the Materials in any manner or for any purpose except those specifically set out in the Contract;
6.1.3 not adapt or translate the Materials in whole or in part;
6.1.4 not permit any of the Materials to be incorporated into, or amalgamated with, any other materials, programs or data, or publish any of the Materials on any internal intranet (although the Customer may, where the Materials are available for download, email the Materials within its organisation);
6.1.5 not circulate or otherwise distribute the Materials, in whole or in part, outside of the Customer’s organisation;
6.1.6 maintain access to the Website and/or the Materials through its telecoms or Internet service providers; PAT is not responsible for any connections from the Customer’s system to the Website and/or the Materials;
6.1.7 be responsible for ensuring that, and hereby warrants and undertakes to PAT that its use of the Website and/or the Materials:
(a) confirms in all respects with all applicable laws, rules, regulations, bye-laws and codes of practice;
(b) does not infringe the privacy rights or Intellectual Property Rights of any third party;
(c) is not defamatory, malicious, abusive, obscene, indecent, discriminatory or harassing;
(d) does not impose an unreasonable or disproportionately large load on PAT’s infrastructure;
(e) does not interfere with another customer’s use of the Website and/or the Materials; and
(f) does not contain any material detrimental to PAT or any other user of the Website and/or the Materials or similar services, including any viruses, trap doors, back doors, Trojan horses, time bombs, easter eggs, worms, cancelbots or other computer programming routines that are intended to detrimentally interfere with, damage, expropriate or surreptitiously intercept any system, data or personal information;
6.1.8 report any faults or suspected faults with the Website and/or the Materials to PAT immediately upon discovery;
6.1.9 use the Customer’s own login details for the Account and not impersonate another person or adopt false identity; anyone logging in to the Customer’s Account using the Customer’s login details will be deemed to be authorised by the Customer;
6.1.10 keep the password for the Account strictly confidential and secure and immediately inform PAT if the Customer knows or suspects that any unauthorised third party becomes aware of that password or if it becomes aware of any unauthorised use of the password or there is any breach of security known or suspected by the Customer;
6.1.11 promptly comply with PAT’s reasonable requests from time to time in connections with the Contract;
6.1.12 co-operate with PAT; and
6.1.13 ensure that the Materials are sufficient and suitable for the Customer’s purposes and meet the Customer’s individual requirements.
6.2 The Customer warrants that it:
6.2.1 has all necessary rights, permissions and consents to enter into the Contract;
6.2.2 shall procure that it and its employees, agents and contractors co-operate with PAT and its employees, agents and contractors;
6.2.3 shall comply with PAT’s reasonable requests from time to time;
6.2.4 shall not allow access to the Materials from more than five of its offices for the duration of the Contract without the prior written consent of PAT (to be granted, withheld or conditional at PAT’s absolute discretion);
6.2.5 has the required skills and judgment to use the Materials and undertakes at all times to exercise the same in its use of the Materials, and the Customer accepts that it shall be solely responsible, and shall have all Liability, for all opinions, recommendations, comments, advice, action or omission taken by the Customer arising out of such use;
6.2.6 shall promptly inform PAT if the Customers discovers any errors or inaccuracies on the Website or in the Materials;
6.2.7 shall not use the Website and the Materials in any way which may be in breach of any law, statute, regulation, bye-law or code of practice of any applicable jurisdiction; and
6.2.8 shall not make or give any promises, warranties, guarantees or representations to any third party concerning the Website and/or the Materials other than those already specifically approved by PAT in writing.
6.3 The Customer acknowledges that its use of the Website and the Materials, whether by accessing, using, storing or otherwise dealing with the same, may from time to time be subject to certain laws, statutes, regulations, bye-laws or codes of practice and the Customer undertakes to comply with all laws, statutes, regulations, bye-laws and codes of practice applicable to the Website and/or the Materials from time to time.
6.4 The Customer acknowledges that, in order to provide advice and/or take any action based on the Materials, it may need to have in place certain consents, permissions, certificates or registrations, and the Customer undertakes to have, and shall be responsible and have all Liability for having in place, all such consents, permissions, certificates or registrations applicable to such advice and/or actions from time to time.
7. Intellectual Property Rights
7.1 The Customer acknowledges that PAT and its licensors own all the Intellectual Property Rights in the Website and the Materials, whether or not any of the Website or the Materials are created, customised or configured at the specific request of the Customer. The Customer shall not have any rights to use the Website or the Materials other than in the manner envisaged by the Contract. The Customer shall not, at any time during the term of the Contract or at any time after the termination of the Contract, question or dispute PAT’s ownership (or PAT’s licensors’ ownership) of any such rights.
7.2 PAT hereby grants to the Customer a non-exclusive, non-assignable, non-sublicensable licence to use the Website and the Materials for the purposes of accessing the Materials as envisaged by the Contract.
7.3 The Customer shall not, without PAT’s prior written consent, allow any third party to use or have access to the Account or the Materials. The Customer shall not use the Website or the Materials as a service bureau.
7.4 The Customer shall not:
7.4.1 copy all or any of the Materials;
7.4.2 at the time of access to the Materials, video or photograph the computer screen; or
7.4.3 otherwise record the Materials.
7.5 If the Customer becomes aware of any improper or wrongful use of PAT’s Intellectual Property Rights, it shall immediately inform PAT of such use. The Customer shall, on PAT’s reasonable request, assist PAT (at PAT’s cost) in taking such steps in connection with the protection or defence of PAT’s Intellectual Property Rights as PAT may reasonably determine.
7.6 The Customer acknowledges that criminal and civil penalties may be incurred in the event of any infringement of the Intellectual Property Rights in the Website and/or the Materials, and that any such infringement by the Customer may result in incalculable damage and/or loss to PAT, and, accordingly, the Customer agrees that, in addition to any other right or remedy available to PAT, PAT shall be entitled to immediate injunctive relief to restrain any actual or expected infringement thereof. The Customer shall indemnify, and keep indemnified, PAT 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 professional costs and expenses) suffered or incurred by PAT arising out of or in connection with any such infringement by the Customer.
7.7 The Customer shall not use the Website or the Materials in any way which may be detrimental to PAT’s reputation or harm PAT’s interests
7.8 PAT may insert or apply any applicable copyright, trade mark or other Intellectual Property Rights and other marks and notices to or on the Website and/or the Materials, and the Customer shall not remove, erase, obstruct, change or object to any of the same.
7.9 The rights and obligations of this Clause 7 shall continue after the termination of the Contract for any reason.
8.1 In consideration of PAT’s obligations in the Contract, the Customer shall pay to PAT the Charges.
8.2 All Charges are payable monthly in advance by direct debit, unless otherwise set out in the Order, and, unless otherwise set out in the Order, the direct debit mandate shall be submitted by the Customer to PAT together with the Order, in accordance with Clause 1.
8.3 PAT may issue invoices to the Customer at such times, and at such intervals, as it considers appropriate from time to time.
8.4 All sums due to PAT are exclusive of VAT and other duties or taxes (if applicable) which the Customer shall pay in addition at the same time as payment of the Charges.
8.5 The Customer shall pay the Charges to PAT in the currency in force in England from time to time.
8.6 No payment shall be considered paid until it is received by PAT in cleared funds in full.
8.7 Payment of all sums due to PAT under the Contract shall be made by the Customer in full without any set-off, deduction or withholding whatsoever.
8.8 If the Customer is late in paying any part of any monies due to PAT under the Contract and such payment remains outstanding for seven days following PAT providing notice to the Customer of such outstanding payment, PAT may (without prejudice to any other right or remedy available to PAT whether under the Contract or by any statute, regulation or bye-law) do any or all of the following:
8.8.1 charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
8.8.2 recover PAT’s costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
8.8.3 suspend performance of the Contract, and access to the Materials, until payment in full has been made.
9.1 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
9.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under the Contract; or
9.1.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 9.
9.2 Each Party shall use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.
9.3 A Party may disclose the other Party’s Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
9.3.1 it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
9.3.2 it does so subject to obligations equivalent to those set out in this Clause 9.
9.4 A Party may disclose the Confidential Information of the other Party 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 4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
9.5 The obligations of confidentiality in this Clause 9 shall not extend to any matter which either Party can show:
9.5.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of the Contract; or
9.5.2 was independently developed by it; or
9.5.3 was independently disclosed to it by a third party entitled to disclose the same; or
9.5.4 was in its written records prior to receipt.
9.6 Each Party reserves all rights in its 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.
9.7 PAT may identify the Customer as its client and the type services provided by PAT to the Customer, provided that, in doing so, PAT shall not reveal any of the Customer’s Confidential Information (without the Customer’s prior written consent).
9.8 On termination of the Contract, each Party shall:
9.8.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
9.8.2 erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
9.8.3 certify in writing to the other Party that it has complied with the requirements of this Clause 9.8, provided that a recipient Party 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.
9.9 The provisions of this Clause 9 shall continue to apply after termination of the Contract.
10. Data protection
10.1 Each Party shall comply with all relevant data protection legislation in performing its respective obligations under the Contract.
10.2 Use of the Website and access to the Materials is subject to PAT’s Privacy and Cookies Policy.
11. Duration and termination
11.1 The Contract shall commence on the date on which PAT accepts the Customer’s Order in accordance with Clause 3.5 (“Commencement Date”), and shall continue in force, subject to earlier termination pursuant to any of the termination provisions of the Contract, until either Party gives to the other Party one month’s written notice to terminate, expiring on the expiry of any complete month from the Commencement Date.
11.2 Without prejudice to any of PAT’s rights or remedies, PAT may terminate the Contract with immediate effect (or such other notice period as PAT sees fit in its absolute direction) by giving notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and such amount remains in default not less than seven days after being notified to make such payment.
11.3 Either Party may terminate the Contract immediately by notice in writing to the other Party if:
11.3.1 the other Party is in material breach of any of its obligations under the Contract, and, where such material breach is capable of remedy, the other Party fails to remedy such breach within a period of 10 Business Days of being notified of such breach by the Party; and/or
11.3.2 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
11.4 Termination of the Contract shall be without prejudice to any accrued rights or remedies of either Party.
11.5 Termination of the Contract shall not affect the coming into force, or continuance in force, of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
11.6 On termination of the Contract for any reason, PAT shall cease to provide for the Customer access to the Customer’s Account and the Materials.
11.7 Clauses 1, 7, 8, 9, 10, 11.4, 11.5, 11.6, 11.7, 12, 13.6, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive any termination of the Contract for any reason.
12. Limitation of Liability
12.1 This Clause 12 prevails over all of the Contract and sets forth the entire Liability of either Party, and the sole and exclusive remedies of the other Party, in respect of:
12.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of the Contract or any goods, services or deliverables provided in connection with the Contract; or
12.1.2 otherwise in relation to the Contract or entering into the Contract.
12.2 Neither Party excludes or limits its Liability for:
12.2.1 its fraud; or
12.2.2 death or personal injury caused by its Breach of Duty; or
12.2.3 any breach of the obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
12.2.4 any other Liability which cannot be excluded or limited by applicable law.
12.3 Subject to Clause 2, neither Party accepts and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of the Contract.
12.4 Subject to Clause 2, neither Party shall have any Liability in respect of any:
12.4.1 indirect or consequential losses, damages, costs or expenses;
12.4.2 loss of actual or anticipated profits;
12.4.3 loss of contracts;
12.4.4 loss of use of money;
12.4.5 loss of anticipated savings;
12.4.6 loss of revenue;
12.4.7 loss of goodwill;
12.4.8 loss of reputation;
12.4.9 loss of business;
12.4.10 ex gratia payments;
12.4.11 loss of operation time;
12.4.12 loss of opportunity;
12.4.13 loss caused by the diminution in value of any asset; or
12.4.14 loss of, damage to, or corruption of, data;
whether or not such losses were reasonably foreseeable or the Party’s agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 12.4.2 to 12.4.14 (inclusive) of this Clause 12.4 apply whether such losses are direct, indirect, consequential or otherwise.
12.5 Subject to Clause 2, the total aggregate Liability of each Party arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to the greater of:
12.5.1 110% of all amounts paid and total other sums payable, in aggregate, by the Customer to PAT under the Contract in the 12 months prior to the date on which the claim first arose; or
12.6 The Customer shall not limit its Liability:
12.6.1 for failure to pay the Charges; and
12.6.2 under the indemnity set out in Clause 6.
12.7 The limitation of Liability under Clause 5 has effect in relation both to any Liability expressly provided for under the Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of the Contract.
12.8 The Customer acknowledges and accepts that PAT only provides for the Customer access to the Website and the Materials to the Customer on the express condition that PAT will not be responsible for, nor shall PAT have any Liability (subject to Clause 2) directly or indirectly for, any act or omission of the Customer, or its employees, agents or subcontractors, or any third party.
13. Force Majeure
13.1 Subject to Clause 12.2, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under the Contract which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An "Event of Force Majeure" means any cause outside of the Party's reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
13.2 Each of the Parties agrees to inform the other upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3 The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
13.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
13.5 If the performance of any obligations is delayed under this Clause 13, each Party shall nevertheless accept performance as and when the other shall be able to perform.
13.6 If the Event of Force Majeure continues without a break for more than one month, either Party may terminate the Contract immediately by notice to the other, in which event neither Party shall have any Liability (subject to Clause 2) to the other Party by reason of such termination.
13.7 If PAT has contracted to provide identical or similar services to more than one customer and PAT is prevented from fully meeting its obligations to the Customer due to an Event of Force Majeure, PAT may decide at its absolute discretion which contracts PAT will perform and to what extent.
14.1 Any notice given to either Party under or in connection with the Contract shall be in writing, addressed to the relevant Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery or commercial courier.
14.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
14.3 The provisions of this Clause 14 shall not apply to the service of any proceedings or other documents in any legal action.
The Customer may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, the Contract or any right, benefit or interest under it, nor transfer, novate or sub-contract any of its obligations under it, without PAT’s prior written consent (such consent not to be unreasonably withheld or delayed).
16.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18. Third party rights
A person who is not a Party shall not have any rights under or in connection with the Contract.
The Contract may not be varied except by a written document signed by or on behalf of each of the Parties.
20. No partnership
Nothing in the Contract shall constitute a partnership or employment or agency relationship between the Parties
21. Governing law and jurisdiction
21.1 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 laws of England.
21.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation.
These Membership Terms were last updated on 17th May 2019.