1.	Definitions 
1.	In these terms and conditions the following expressions have the following meanings unless the context otherwise requires: 
“Additional Services” means the services described as such on the Order Form or ordered using the Additional Services Order Form; 
“Additional Services Order Form” means a completed form in the format set out in Schedule 1; 
“Business Day” means any day (other than Saturday) on which clearing banks are open for normal banking business in the City of London; 
“Confidential Information” means, any and all information that is proprietary or confidential in nature and is labelled as such or relates to details of the Supplier and/or Platform and is not readily available in the public domain; 
“Contract” means these terms and conditions and the Order Form(s); 
“Customer” means the person or organisation set out on the Order Form; 
“Customer Data” means the data inputted by the Customer, Users, or the Supplier on the Customer's behalf for the purpose of using the Platform and/or Services or facilitating the Customer's use of the Platform and/or Services; 
“Customer Software” means any application developed by the Customer by using the Platform. 
“Fees” means all fees agreed to be paid by the Customer to the Supplier as set out on the Order Form or an Additional Services Order Form and/or as set out in an invoice (for Service(s)); 
“Hosting Provider” means Microsoft Ireland Operations Limited (or its affiliates) or any replacement hosting provider notified by the Supplier to the Customer in writing from time to time; 
“Hosting Provider Terms” means the terms and conditions set out at https://azure.microsoft.com/en-gb/support/legal/subscription-agreement/ or such other terms as notified by the Supplier to the Customer in writing; 
“Initial Term” means the initial period commencing on the Commencement Date as set out on the Order Form; 
“Intellectual Property Rights” means any patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world; 
 “Order Form” means the formal document that describes the services and software that are procured by the Customer; 
“Platform” means the software platform described in the Order Form, including without limitation any Third Party Software made available under the terms of this Contract;  
“Portal” means the website hosted by the Supplier on which the Customer can access the Software; 
“Renewal Term” has the meaning ascribed to it in clause 4.1; 
“Service(s)” means the provision of services in connection with providing the Platform and/or the Portal in accordance with this Contract and any Additional Services provided in accordance with clause 3.4; 
 “Supplier” means Mercato Solutions Limited and any of its associated companies; 
“Term” means the Initial Term and any Renewal Term; 
“Third Party Software” means any software in which the Intellectual Property Rights are owned by a third party; 
“User” means the user(s) set out in the Order Form that are permitted to use the Platform concurrently at any one time; and 
“Virus” means 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 device.   
 
2.	Basis of Contract 
1.	These terms and conditions shall govern the agreement between the Customer and the Supplier to the exclusion of any other terms or conditions.  In the event of any ambiguity or conflict between these terms and conditions and the Order Form, the Order Form shall take precedence 
2.	The Supplier reserves the right to refuse to accept orders for additional Service(s) and/or additional Users and/or to suspend or withhold delivery of additional Service(s) and/or additional Users until the Customer has submitted an Additional Service Order Form. 
3.	The Customer shall be solely responsible for the accuracy when placing an order and for giving the Supplier and validating any information necessary for the Supplier to perform its obligations under the Contract. 
4.	If the Customer terminates this Contract for any reason, the Customer shall not be entitled to a full or partial refund of Fees. 
  
4.	Fees 
1.	In consideration of the grant of access, the Customer shall pay to the Supplier the Fees.  The first Fees payable by the Customer must be paid immediately upon request by the Supplier.  The Supplier reserves the right to only make the Platform and Service(s) available to the Customer once the Fees have been paid and cleared funds for the full amount of the invoice are credited to the Supplier’s bank account. 
2.	The Customer agrees to pay all undisputed invoices in accordance with the payment profile set out in the Order Form. 
3.	The Fees and all other payments payable under or in connection with this Contract are exclusive of any VAT and/or other sales tax which, if applicable, shall be payable in addition at the appropriate rate. 
4.	The Supplier may make a reasonable increase to the Fees at the end of the Initial Term by giving the Customer 30 days’ notice.  If the Customer notifies the Supplier in writing within the 30 days’ notice period that it does not accept an increase in Fees, the Contract will end automatically at the end of that 30 day period.  If no notice to terminate is received by the Supplier from the Customer before the end of the Term, the Customer will be deemed to have accepted the increase in Fees. 
5.	If the Customer fails to make any payment when due under this Contract, the Supplier may, in addition to any other remedies it may have, charge the Customer any reasonable administration costs and/or interest (both before and after judgment) on the amount unpaid at the higher of the rate of 4% per annum above the base rate of Barclays Bank plc from time to time. 
6.	Notwithstanding the foregoing, if payment in full is not made to the Supplier when due then the Supplier may withhold or suspend future or current access to the Platform and delivery and/or performance under any other agreement with the Customer. 
 
5.	Portal 
1.	The Supplier will issue the Customer with a login ID and password for at least one User in order for that User to access the Portal.  The Customer is solely responsible and liable for the use of the Software on the Portal and for the security of the login IDs and passwords and must not disclose them and procure that they are not disclosed to any third party except authorised Users.  The Customer must notify the Supplier immediately if the Customer suspects any breach of confidentiality and/or unauthorised use of the Portal, Platform, Service(s) and/or the Customer’s login ID or password.  
2.	The Supplier shall use its reasonable endeavours to minimise any amount of down-time and any loss or damage resulting from viruses and/or any loss of data used in relation to the Portal. 
3.	The Supplier will use its reasonable endeavours to ensure (i) that the security of all software and hardware involved in and/or necessary for the provision of the Portal and (ii) that all such software or hardware will remain secure in accordance with up to date industry standards for security. 
4.	The Supplier shall use its reasonable endeavours to ensure the security of the Customer’s data and will operate the Supplier’s servers behind firewalls. 
5.	The Supplier may, at any time and without notice, remove the Portal from its server and/or bar access to the Portal if the Customer breaches and/or if the Supplier suspects the Customer may have breached the terms of this Section 6 and/or if the Supplier is authorised to do so by any court or competent law enforcement agency. 
6.	The Customer undertakes that, it will ensure that (and it will procure that the Users ensure that): 
1.	The maximum number of Users that it authorises to use the Platform and/or Service(s) shall not exceed the number of Users set out in the Order Form and/or in the invoice; 
2.	It will not allow or suffer any User access to be used by more than one individual User unless it has been reassigned in its entirety to another User, in which case the prior User shall no longer have any right to access the Platform and/or Service(s); 
3.	Each User shall keep a secure password of his use of the Platform and/or Service(s) and that password shall be (i) regularly changed and (ii) kept confidential; 
4.	it shall maintain a written, up to date list of current Users and provide such list to the Supplier within 10 Business Days of the Supplier's written request at any time or times; 
5.	it shall permit the Supplier to audit the Services in order to review whether the Customer is in compliance with the terms and conditions set out in this Contract.  Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; 
6.	if any of the audits referred to in clause 6.6.5 reveal that any password has been provided to any individual who is not a User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and 
7.	if any of the audits referred to in clause 6.6.5 reveal that the Customer has underpaid Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment within 10 Business Days of the date of the relevant audit; 
8.	it shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services 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.	is in a manner that is otherwise illegal or causes damage or injury to any person or property; 
7.	The Supplier 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.  
8.	The Customer shall not, 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 Contract: 
1.	attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Service(s) (as applicable) in any form or media or by any means; or 
2.	attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform and/or Service(s); or 
3.	access all or any part of the Platform and/or Service(s) in order to build a product or service which competes with the Platform and/or Service(s); or 
4.	use the Platform and/or Service(s) to provide services to third parties; or 
5.	subject to clause 12.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform Service(s) available to any third party except the Users, or 
6.	attempt to obtain, or assist third parties in obtaining, access to the Platform and/or Service(s), other than as provided under this clause 6; and 
9.	The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or Service(s) and, in the event of any such unauthorised access or use, promptly notify the Supplier. 
10.	The rights provided under this clause 6 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer. 
11.	The Customer acknowledges and agrees that the Supplier may be required by a law enforcement, governmental and/or regulatory agency to monitor the content and traffic on the Portal and/or give evidence of the same together with details of user identification and/or use of the password to support or defend any dispute or actionable cause or matter which arises in relation to the same. 
12.	The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damage, expenses and costs (including without limitation, reasonable legal fees) arising (i) out of or in connection with the Customer’s use of the Platform and/or the Service(s) and (ii) out of any breach by the Customer of clause 8, provided that: 
1.	the Customer is given prompt notice of any such claim; 
2.	the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and 
3.	the Customer if given sole authority to defend or settle the claim. 
 
6.	Customer Data 
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. 
2.	The Supplier will ensure that there are regular back ups of Customer Data. In the event of any loss or damage to Customer Data caused by the Supplier, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier.  The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up). If recovery of Customer Data is required as a result of an issue resulting from the Customer, the Supplier will use all reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier provided that the Customer pays the Supplier’s reasonable additional Fees for such recovery. 
3.	If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Contract, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case: 
1.	the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this Contract; 
2.	the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Contract on the Customer's behalf; 
3.	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; 
4.	the Supplier shall process the personal data only in accordance with the terms of this Contract and any lawful instructions reasonably given by the Customer from time to time; and 
5.	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. 
8.	
9.	Intellectual Property Rights 
1.	All Intellectual Property Rights in the Portal, the Platform and the Service(s) and in any modifications thereto shall be owned by the Supplier and/or its third party licensor(s).  The Customer shall at the Supplier’s request and reasonable cost do any acts and/or execute any and all documents and deeds necessary or desirable to give effect to this provision.   
2.	All Intellectual Property Rights in the Customer Software, excluding the Platform, Service(s) and Portal shall be owned by the Customer. 
3.	The Supplier will either: 
1.	permit the Customer to sub- licence the use of the Platform and the Portal to third party users of the Customer Software; or 
2.	require that the Customer procures that any third party user must enter into a licence agreement directly with the Supplier before using the Platform or the Portal in connection with the Customer Software; 
as set out in the Order Form and other than as described in this clause 9.3, the Customer will not be permitted to allow the use of the Platform or the Portal by any third party and/or use the Platform or the Portal to provide any services to any third party. 
4.	The Customer shall procure that any sub-licence entered into in accordance with clause 9.3.1 shall be subject to the restrictions and limitations set out in clauses 3.1, 3.2, 6.5, 6.6 6.7, 6.8, 6.9, 6.11, and 9.  
5.	Except as expressly set out in the clause 9, nothing in this Contract is intended to confer any rights and/or licence in the Platform, Portal and/or Service(s) to the Customer’s subscribers and/or licensees. 
 
 
  
11.	General 
1.	The Supplier shall have no liability to the Customer under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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 or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration. 
2.	No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 
3.	No variation to these conditions shall be binding on the Supplier unless agreed in writing between the Customer and one of the Supplier’s authorised representatives. 
4.	If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provisions shall be unaffected and shall remain in full force and effect.  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. 
5.	This Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements understandings or discussions between the parties.   Each of the parties acknowledges and agrees that in entering into this Contract 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 Contract or not) relating to the subject matter of this Contract, other than as expressly set out in this Contract. 
6.	Any notice under this Contract may be served by first class post to the address set out on the Order Form or such other address as may be notified by any of the parties from time to time.  A notice shall be deemed served, on the Business Day immediately after the day on which it was sent and if sent by first class post, on the second Business Day after posting. 
7.	Nothing in this Contract is intended to or shall operate to create a partnership or agency between the parties. 
8.	The Customer may not assign, transfer, sub-contract or charge in whole or in part any of its rights and/or obligations under this Contract without the Supplier’s prior written consent.  The Supplier may assign, transfer, sub-contract or charge in whole or in part its rights and/or obligations under this Contract. 
9.	All third party rights are excluded and no third party shall have any right to enforce this Contract other than the parties to this Contract, the Supplier’s group companies, their successors and permitted assigns (pursuant to the Contracts (Rights of Third Parties Act 1999)).   
10.	This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.  Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim under this contract.