Terms & Conditions

SERVICE TERMS AND CONDITIONS

Effective Date: 1st January 2018

1. INTRODUCTION
   1. This is an agreement between Athene Systems Limited trading as “Liberty Accounts” with its registered office at Abbey House, Farnborough Road, Farnborough, Hampshire, GU14 7NA, company number 3156080 (“Supplier”) and the person or entity identified in any applicable Order Form or who otherwise wishes to utilise the Services (as explained below) (“Client”).
2. BACKGROUND
   1. The Supplier has developed various software applications and platforms which it makes available online. The Supplier has agreed to provide its Services to the Client subject to the terms and conditions of this agreement.
3. DEFINITIONS AND INTERPRETATION
   1. Capitalised terms have the following meanings in these terms and conditions:
      1. Applicable Laws: all applicable laws, regulations and codes of conduct
      2. Business Day: a day other than a weekend or public holiday in England
      3. Client Data: all data inputted by the Client in connection with the Services
      4. Data: Client Data and Third Party Data
      5. Personal Data: as defined in the Data Protection Act 1998
      6. Price List: the Supplier’s price list shown on the Website or otherwise available from the Supplier as may be varied from time to time
      7. Services: the platform (including the Software) provided by the Supplier to the Client under this agreement as described in more detail on the Website
      8. Software: the online software applications provided by the Supplier as part of the platform
      9. Standard Business Hours: 9.00 am to 5.00 pm local UK time each Business Day
      10. Supplier Fees: any fees due to the Supplier under this agreement
      11. Third Parties: all clients of the Client and other third parties who are authorised by the Client to access the Services
      12. Third Party Data: all data inputted by Third Parties in connection with the Services
      13. Users: the Client and Third Parties
      14. Website: the website at www.libertyaccounts.com
      15. in Writing: all forms of visible reproduction in permanent form (including email unless otherwise stated)
   2. Words in the singular include the plural and vice versa. References to a “person” shall include any individual, firm, unincorporated association or body corporate. Any reference in this agreement to any provision of a statute shall be construed as a reference to that provision, as amended, re-enacted or extended at the relevant time. The word “including”, unless the context otherwise requires, shall mean “including without limitation”. The headings in this agreement are for convenience only and shall not affect its interpretation.
4. Supplier’s Obligations
   1. Subject to the terms and conditions of this agreement, the Supplier hereby grants to the Client a non-exclusive, non-transferable right to use the Services.
   2. The Supplier shall provide the Services subject to the terms and conditions of this agreement.
   3. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, excluding:
      1. planned maintenance carried out at any time outside Standard Business Hours; and
      2. maintenance which the Supplier considers to be urgent.
   4. The Supplier undertakes that it shall supply the Services with reasonable skill and care (“the Undertaking”). The Undertaking shall not apply to the extent that any breach is caused by use of the Services contrary to the Supplier's instructions or by modification of the Services by any party other than the Supplier. If the Services do not comply with the Undertaking and provided that this agreement has not been terminated and that neither party has given notice to terminate the agreement, the Supplier shall, at its expense and subject to the other terms of this agreement, use reasonable commercial endeavours to correct any such non-compliance promptly or provide the Client with a reasonable alternative means of accomplishing the desired performance. Such correction or substitution is the Client's sole and exclusive remedy for any breach of the Undertaking.
   5. Notwithstanding the foregoing, the Supplier:
      1. does not warrant that the Client's use of the Services will be uninterrupted or error-free; or that the Services or the information obtained by the Client through the Services will meet the Client's requirements; and
      2. 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 Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
   6. The Supplier does not provide professional advice or warrant that use of Services will necessarily achieve compliance with any accounting rules or regulations or any other Applicable Laws. It is entirely the Client’s responsibility to satisfy itself as to such matters.
5. Support
   1. The Services include telephone and email support. The Supplier may vary the nature of the support or withdraw it entirely. The Supplier reserves the right to charge for support.
   2. Support is only available to Users registered with the Supplier.
   3. Support shall be available only during Standard Business Hours.
   4. The Supplier shall use reasonable commercial endeavours to respond to support queries within one Business Day and to provide a workaround or fix as soon as reasonably possible.
   5. The Supplier shall not in any event be obliged to supply support:
      1. in respect of faults or problems directly or indirectly arising from:
         1. incorrect use of the Services;
         2. services not supplied by the Supplier; or
         3. any cause external to the Service; or
      2. if any Supplier Fees are unpaid.
6. Client’s Obligations
   1. The Client shall:
      1. provide the Supplier with:
         1. all necessary co-operation in relation to this agreement; and
         2. all necessary access to such information as may be required by the Supplier in order to provide the Services;
      2. properly administer service keys and/or direct debit mandates relating to the Services;
      3. comply with all Applicable Laws and not infringe any third party rights with respect to this agreement and use of the Services;
      4. take reasonable care to maintain the confidentiality of any passwords and other log-in information relating to the Services and promptly notify the Supplier of any apparent breach of security such as loss, theft, misuse or unauthorised disclosure or use of a password;
      5. promptly notify the Supplier of any errors which it encounters in the Services;
      6. not do anything which may have the effect of disrupting the Services including storage, distribution or transmission of worms, viruses, software bombs or mass mailings or the like;
      7. attempt to gain unauthorised access to any part of the Services or equipment used to provide the Service
      8. ensure that Third Parties use the Services in accordance with this agreement and shall be responsible for any Third Party’s failure to do so;
      9. ensure that its and Third Parties’ networks and systems comply with any relevant criteria specified by the Supplier from time to time; and
      10. be solely responsible for procuring and maintaining its network connections and telecommunications links from its or Third Parties’ systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
7. Payment
   1. The Client shall pay the fees to the Supplier at the rates agreed with the Client or, if none, in accordance with the Price List. The Client shall use the payment methods specified on the Website from to time.
   2. Payment for service keys is invoiced monthly in advance unless otherwise stated on the Website. Additional fees such as transaction excess charges are invoiced in arrears.
   3. If a concessionary pricing threshold has been exceeded, then concessionary pricing is withdrawn with effect from the following month.
   4. No refunds will be given in respect of fees for the month in which a service key is cancelled if that month’s fees have already been invoiced.
   5. The Supplier may change the amount of any of Supplier Fees or the concessionary pricing thresholds by giving 28 days’ notice in Writing.
   6. The Client shall pay the Supplier Fees without any withholding, deduction, counterclaim or setoff. Unless otherwise stated, Supplier Fees are not refundable (including if service keys are withdrawn during a month which has already been paid for), are payable within 30 days of invoice and are exclusive of VAT and other sales tax, which shall be payable in addition by the Client.
   7. The Client ultimately remains responsible for payment of all Supplier Fees notwithstanding that it has arranged for a Third Party to pay some or all of the Supplier Fees to the Supplier.
   8. The Supplier may charge interest on overdue sums (both before and after judgment) at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998.
8. Data
   1. The Supplier will use reasonable commercial endeavours to create daily offsite backups of Data for the purposes of disaster recovery. The Supplier does not guarantee that all Data will be backed up or that it will be able to restore Data in all circumstances. Even if there is a restorable backup, the Supplier does not guarantee that that there will be no Data loss.
   2. As between the Supplier and Client, the Client is responsible for Data. The Client warrants that Data shall not be unlawful, defamatory, threatening, harassing, invasive of privacy, offensive, vulgar, racist, hateful, discriminatory, obscene, pornographic, sexually suggestive, promoting of self-harm, misleading, abusive or deceptive or an infringement of third party intellectual property or other rights.
   3. The Supplier reserves the right without notice or refund to suspend, alter, remove or delete Data or to disclose to the relevant authorities any Data or behaviour if it is the subject of complaint or where the Supplier has reason to believe that it breaches this agreement or that such steps are necessary to protect the Supplier or others or that a criminal act has been committed or that the Supplier is required to do so by law or appropriate authority.
9. Personal Data
   1. The Client is the data controller and the Supplier is the data processor in connection with any Personal Data included within the Data.
   2. Insofar as the Supplier may process any Personal Data on behalf of the Client as data processor, the Supplier agrees that:
      1. the Supplier shall do so only in accordance with this agreement or your written instructions, and
      2. the Supplier will at all times have appropriate technical and organisational measures in place to protect all such Personal Data against unauthorised or unlawful processing, accidental loss, destruction or damage and that, having regard to the state of technological development and the cost of implementing any measures, the measures shall ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and to the nature of the data to be protected.
10. Termination and Suspension
    1. This agreement shall start on the start date shown in the Order Form, if applicable, or, if not applicable, when the Client agrees to these terms and conditions and shall continue until terminated by either party in accordance with this agreement.
    2. Any trial period automatically terminates after 28 days unless the Client takes out a subscription within that period.
    3. The Client is entitled to terminate this agreement at any time by giving notice in writing to the Supplier. For the avoidance of doubt, such notice does not give rise to any refund of Supplier Fees.
    4. The Supplier is entitled to terminate this agreement at any time by giving at least three months’ advance notice in Writing to the Client.
    5. The Supplier is entitled to suspend or terminate this agreement at any time by giving immediate notice in Writing to the Client if the Supplier terminates the Services as a whole or any Supplier Fees are unpaid or the Supplier acting reasonably considers it necessary to terminate the agreement to protect itself or others, in all of which cases there will be no refund of Supplier Fees already paid. If the Supplier suspends this agreement, fees shall continue to fall due during the suspension period. The Supplier shall be entitled not to restore any Services until any outstanding Supplier Fees including interest have been paid.
    6. Without prejudice to any other right or remedy available to either party under this agreement or at law, either party (the ‘Innocent Party’) may terminate this agreement at any time and with immediate effect upon giving notice to the other party if:
       1. the other party has committed a material breach of this agreement and has failed to remedy such breach within thirty (30) days of receipt of a notice in Writing from the Innocent Party describing the breach and requiring its remedy; or
       2. the other party suffers, or threatens to suffer, any form of bankruptcy, insolvency, receivership, administrative receivership, administration or is unable to pay its debts or makes any arrangement with creditors or applies for protection from creditors or passes a resolution for its winding up or ceases, or threatens to cease, to carry on business or any event occurs which is substantially similar to any of the foregoing.
    7. On termination of this agreement for any reason:
       1. all licences granted under this agreement shall immediately terminate and the Supplier shall cease supplying the Services;
       2. accrued rights and liabilities shall be unaffected; and
       3. the Supplier is entitled to delete any Data without notice after 28 days following termination;
       4. all terms shall survive which are expressed or intended to survive termination as well as any terms necessary for the interpretation or enforcement of this agreement.
11. Limitation of liability
    1. Any provisions in this agreement excluding or limiting liability will apply regardless of the form of action, whether under statute, in contract or tort including negligence or otherwise. Such provisions apply to and may be enforced by the relevant party’s directors, officers, employees, subcontractors, agents and affiliated companies as well as to the party itself and those parties will have the benefit of such provisions in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this agreement in any way excludes or restricts either party’s liability for negligence causing death or personal injury or for fraudulent misrepresentation or for any liability which may not legally be excluded or limited.
    2. The liability of the Supplier of any kind (including for negligence) with respect to the Services for any one event or series of related events shall in no circumstances exceed the total fees paid or payable to the Supplier in the 12 months preceding the event(s) complained of.
    3. The Supplier shall not in any event be liable for any
       1. economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
       2. loss of goodwill or reputation;
       3. special, indirect or consequential losses; or
       4. damage to or loss of Data
       (even if the Supplier has been advised of the possibility of such losses).
    4. The Supplier shall not be liable for breach of this agreement unless the Client has given the Supplier prompt written notice of the breach and a reasonable opportunity thereafter to rectify the breach at the Supplier’s expense.
    5. The parties excludes all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services, express or implied, that are not expressly stated herein, including but not limited to any implied warranties as to quality, fitness for purpose or ability to achieve a particular result.
12. Indemnity
    1. The Client shall defend, indemnify and hold harmless the Supplier 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 Client's use of the Services (including use thereof by any Third Party) and/or breach of this agreement by the Client, provided that:
       1. the Client is given prompt notice of any such claim;
       2. the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and
       3. the Client is given sole authority to defend or settle the claim.
13. Intellectual Property Rights
    1. The Client acknowledges that the Supplier and/or its licensors own all intellectual property rights in the Services and Software. Except as expressly stated herein, this agreement does not grant the Client any intellectual property rights in respect of the Services and Software. The Supplier warrants that it owns all rights necessary to grant the rights which it purports to grant under this agreement.
    2. Except to the extent expressly permitted under this agreement, the Client shall not use, sublicense, retrieve, display, modify, copy, print, sell, distribute, download, hire, reverse engineer (unless permitted by applicable law) or create extracts of, or derivative works from, the Software.
    3. The Client shall not access all or any part of the Services in order to build or enhance a product or service which competes with the Services.
    4. The Client licenses the Supplier to use in connection with the Services any trade marks, branding and materials (“Materials”) supplied by the Client to the Supplier for such purposes. The Client warrants that the Materials do not infringe any third party intellectual property rights.
    5. The Client acknowledges that the Supplier is entitled to display its own trade marks and branding as it sees fit in connection with the Services.
14. Confidentiality
    1. Each party shall keep in confidence any information in any form (including oral) of a confidential nature relating to the other party obtained in connection with this agreement and shall not without the prior written consent of such other party use that information other than for the purposes of this agreement or disclose it to any person other than its personnel who need to know the information for the purposes of this agreement.
    2. This clause shall not apply to:
       1. information which becomes public knowledge has been published other than through a breach of this agreement;
       2. information lawfully in the possession of the recipient before the disclosure took place;
       3. information obtained from a third party who is free to disclose it; and
       4. information which a party is requested to disclose and if it did not could be required by law or regulation or competent authority to do so.
    3. This section of the agreement shall survive termination.
15. General
    1. This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any previous communications or agreements between the parties in relation to such matters. Both parties acknowledge that there have been no misrepresentations and that neither party has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded
    2. Neither party is liable for failure to perform or delay in performing any obligation (excluding payment) under this agreement if the failure or delay is caused by any circumstances beyond that party’s reasonable control including third party telecommunication failures.
    3. Any notice required by this agreement to be given by any party in Writing may be given by hand or sent (by special delivery within the UK or by international signed for post outside the UK) to another party at its registered office or such other address as that party may notify to the other party for this purpose from time to time or, unless stated otherwise, by email subject to the email not having been returned.
    4. No amendment or variation of this agreement shall be effective unless in Writing (not email), expressed to be an amendment to this agreement and signed by a duly authorised representative of each of the parties.
    5. Neither party may assign or transfer any of its rights or obligations under agreement without the prior consent in Writing (not email) of the other provided, however, that each party shall have the right without consent to assign or its rights or obligations under this agreement in connection with any merger, consolidation, sale or transfer of all or substantially all of such party’s assets. The Developer is entitled to subcontract any of its obligations under this agreement and is responsible for procuring compliance by subcontractors with this agreement.
    6. The failure of a party to exercise or enforce any right under this agreement shall not he deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
    7. If any provision of this agreement is held to be unlawful, void or unenforceable in whole or in part, this agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question, and the parties will renegotiate the offending provision in good faith to achieve the same objects.
    8. Save insofar as expressly provided otherwise in this agreement, no third party may enforce any clause in this agreement under the Contracts (Rights of Third parties) Act 1999.
    9. The relationship of the parties is that of independent contractors. Except as otherwise stated in this agreement, nothing in this agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute any party as the agent, employee or representative of the other(s), or empower any party to act for, bind or otherwise create or assume any obligation on behalf of the other(s), and no party shall hold itself out as having authority to do the same.
    10. This agreement shall be governed by and construed in all respects in accordance with the laws of England and each party hereby submits to the exclusive jurisdiction of the English Courts.