THIS AGREEMENT is dated on the date you register on the ML3 Technical Services Limited website.


PARTIES


(1) ML3 TECHNICAL SERVICES LIMITED incorporated and registered in England and Wales with company number 7486610 whose registered office is at 224 Wigton Road, Carlisle, CA2 6JZ (ML3)
(2) THE CUSTOMER  a person (or authorised agent for a business) who buys services from ML3 Technical Services website as part of their business.


AGREED TERMS


1. INTERPRETATION


1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is obviously proprietary or confidential.
Customer Data: the data inputted by the Customer or by ML3 on the Customer's behalf for the specific purpose of using the Services or facilitating the Customer's use of the Services.
Documentation: the documents made available to the Customer by ML3 online via www.ml3technical.co.uk or such other web address as may be notified by ML3 to the Customer from time to time.
Effective Date: the date of this agreement.
Fees: the fees payable to ML3, as set out in Schedule 1
Normal Business Hours: 9.00 am to 5.00 pm UK time, each Business Day.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.


1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.


2. DOCUMENTATION


2.1 Subject to the terms and conditions of this agreement, ML3 hereby grants to the Customer a non-exclusive, non-transferable right to use the Documentation solely for the Customer's internal business operations.
2.2 The Customer undertakes that it shall keep a secure password for its use of the Documentation, shall change it no less frequently than every three months, and shall keep its user name and the password confidential.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its accessing the Documentation that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and ML3 reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all of any portion of the Documentation (as applicable) in any form or media or by any means; or
(b) access or use all or any part of the Documentation in order to build a product or service which competes with the Services; or
(c) use the Documentation to provide services to third parties; or
(d) subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Documentation available to any third party, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Documentation, other than as provided under this clause 2.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Documentation and, in the event of any such unauthorised access or use, shall promptly notify ML3.


3. CUSTOMER DATA


3.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.2 In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for ML3 to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by ML3. ML3 shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except any third parties sub-contracted by ML3 to perform services related to Customer Data maintenance and back-up).
3.3 ML3 shall comply with its Privacy Policy relating to the privacy and security of the Customer Data, available at www.ml3technical.co.uk or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by ML3 in its sole discretion.
3.4 If ML3 processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and ML3 shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and any other obligations of ML3 under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to ML3 so that ML3 may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) ML3 shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.


4. ML3'S OBLIGATIONS


4.1 ML3 undertakes that the Documentation will be produced with reasonable skill and care.
4.2 The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to ML3's instructions, any  failure by the Customer to provide information as requested from time to time by ML3, or modification or alteration of the Documentation by any party other than ML3 or ML3's duly authorised contractors or agents. ML3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that production of the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.3 This agreement shall not prevent ML3 from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
4.4 ML3 warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.


5. CUSTOMER'S OBLIGATIONS


The Customer shall:


(a) provide ML3 with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by ML3;
in order to provide the Documentation, including but not limited to Customer Data;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, ML3 may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for ML3, its contractors and agents to perform their obligations under this agreement;
(e) ensure that its network and systems comply with the relevant specifications provided by ML3 from time to time; and
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to ML3's systems and for rectifying all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.


6. CHARGES AND PAYMENT


6.1 The Customer shall pay the Fees to ML3 in accordance with this clause 6 and Schedule 1 in such manner as ML3 shall request, which may be STRIPE or BACS.
6.2 If ML3 has not received payment within 30 days after the due date, then without prejudice to any other rights and remedies of ML3:
(a) ML3 may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and ML3 shall be under no obligation to provide any or all of the Documentation while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of ML3's bankers from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
6.3 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 10.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to ML3's invoice(s) at the appropriate rate.


7. PROPRIETARY RIGHTS


7.1 The Customer acknowledges and agrees that ML3 and/or its licensors own all intellectual property rights in the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Documentation.
7.2 ML3 confirms that it has all the rights in relation to the Documentation that are necessary to grant all the rights it grants under, and in accordance with, the terms of this agreement.


8. CONFIDENTIALITY


8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.  A party's Confidential Information shall not be deemed to include information that:


(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body; or
(f) is trivial or obvious.


8.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
8.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
8.4 The above provisions of this clause 8 shall survive termination of this agreement, however arising.


9. INDEMNTIES


9.1 The Customer shall defend, indemnify and hold harmless ML3 against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Documentation, provided that:
(a) the Customer is given prompt notice of any such claim; and
(b) ML3 provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense.
9.2 ML3 shall defend the Customer against any claim that the Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) ML3 is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to ML3 in the defence and settlement of such claim, at ML3's expense; and
(c) ML3 is given sole authority to defend or settle the claim.
9.3 In the defence or settlement of any claim, ML3 may procure the right for the Customer to continue using the Documentation, replace or modify the Documentation so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
9.4 In no event shall ML3, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Documentation by anyone other than ML3; or
(b) the Customer's use of the Documentation in a manner contrary to any instructions given to the Customer by ML3; or
(c) the Customer's use of the Documentation after notice of the alleged or actual infringement from ML3 or any appropriate authority.
9.5 The foregoing states the Customer's sole and exclusive rights and remedies, and ML3's (including ML3's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.


10. LIMITATION OF LIABILITY


10.1 Except as may be otherwise expressly and specifically provided in this agreement, this clause 10 sets out the entire financial liability of ML3 (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:


(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Customer of the Documentation or any part of it; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.


10.2 Except as expressly and specifically provided in this agreement:


(a) the Customer assumes sole responsibility for results obtained from the use of the Documentation by the Customer, and for conclusions drawn from such use. ML3 shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ML3 by the Customer in connection with the Documentation, or any actions taken by ML3 at the Customer's direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
10.3 Nothing in this agreement excludes or limits the liability of ML3:
(a) for death or personal injury caused by ML3's negligence; or
(b) for fraud or fraudulent misrepresentation.


10.4 Subject to clause 10.2 and clause 10.3:


(a) ML3 shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) ML3's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £500,000 (five hundred thousand pounds).


11. TERM AND TERMINATION


11.1 This agreement shall, unless otherwise terminated as provided in this clause 11, commence on the date that you sign up to the document plan and shall continue for 12 months, at which point it can be renewed for a further 12 month period.
11.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:


(a) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(c) to clause 11.2(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.


11.3 On termination of this agreement for any reason:


(a) all and any licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
(c) ML3 may destroy or otherwise dispose of any of the Customer Data in its possession; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.


12. FORCE MAJEURE


ML3 shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control which shall include, and be deemed to include, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ML3 or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, illness or bereavement of its employees or contractors, or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.


13. VARIATION


No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).


14. WAIVER


No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.


15. RIGHTS AND REMEDIES


Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.


16. SEVERANCE


16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.


17. ENTIRE AGREEMENT


17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.


18. ASSIGNMENT


18.1 The Customer shall not, without the prior written consent of ML3, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 ML3 may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.


19. NO PARTNERSHIP OR AGENCY


Nothing in this agreement 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).


20. THIRD PARTY RIGHTS


This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.


21. NOTICES


21.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).


22. GOVERNING LAW


This agreement 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.


23. JURISDICTION


Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

 

Signed by MALCOLM LAIDLAW
for and on behalf of ML3 TECHNICAL SERVICES LIMITED