Terms Of Service

These Terms of Service are effective from 21st June, 2022.

 

If you previously accepted an earlier version of our Terms of Service, the Terms of Service set out below completely replace that earlier version. Your continued use of the VettingGateway Services on or after 21st July, 2022 constitutes your acceptance of the Terms of Service set out below.

 

The Terms of Service refer to the following addendums which also govern your relationship with VettingGateway and your use of the Services:

 

 

Together, the Terms of Service, Data Processing Agreement and Privacy Policy form the entire agreement between you and VettingGateway (“Agreement”).  Please review both addendums carefully, as together with the Terms of Service they constitute a binding legal agreement between you and VettingGateway.  If you do not agree to be bound in this way you should not create an account or use the Services.

 

(NB If you have a separate written agreement with VettingGateway, this Agreement may not apply to you, unless that written agreement does not cover a particular service we offer, in which case this Agreement shall apply to your use of that particular service.) VettingGateway does not enter separate written agreements with Clients (which replace, modify or amend any terms of this Agreement) unless the Client first pays to VettingGateway a non-refundable fee of £3,000 plus VAT as consideration for VettingGateway reviewing the Client’s proposal(s).  In receiving this fee and reviewing the Client’s proposal(s) VettingGateway does not represent nor warrant that it will agree to replace, modify or amend any terms of this Agreement nor provide Services to the Client in accordance with any terms other than those set out below.)

1.0 Interpretation

 

1.1 In this Agreement the capitalised terms set out below shall have the following meanings:

 

“Associated Company” means a company belonging to the same group as either party;

 

“Background-Check Regulations” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to background-checking in the industries or countries in which the Client operates and/or in which the Client undertakes background-checks;

 

“Basic Data Storage Plan” means the storage of Client Personal Data by VettingGateway for a period of twelve (12) months from the Data Storage Start Date;

 

“Charge(s)” means VettingGateway’s charges for the Services as applicable to the Subscription together with such other additional charges as may be agreed between VettingGateway and the Client from time to time, including charges for any Marketplace purchases made by the Client through the Software;

 

“Client” means the person or firm who receives the Services from VettingGateway;

 

“Client Personal Data” means any personal data related to a User which VettingGateway processes in connection with the Services on behalf of the Client;

 

“Codes” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to Messages in the countries in which the Client operates and/or in which any User or any recipient of any Message is located;

 

“Commencement Date” means (in relation to a Subscription):

a. in the case of the “Starter” licence tier, the date when the Client first creates an account on the Site; or

b. in the case of the “Business” and “Enterprise” licence tier, the date when the Client’s first Subscription invoice is raised by VettingGateway.

 

“Data Controller” shall have the meaning set out in the Data Processing Agreement;

 

“Data Processor” shall have the meaning set out in the Data Processing Agreement;

 

“Data Processing Agreement” means the addendum constituting part of this Agreement which is set out at www.vettinggateway.com/dataprocessing;

 

“Data Storage Start Date(s)” means for each User who is undergoing background-checks the latter of:

a. the date on which the User first creates an account on the Site; or

b. the date on which that same User first submits their completed background-checking data to the Client;

 

“Data Protection Laws” means:

a. in relation to the Client all data protection and/or privacy laws, principles and agreements applicable to the country in which the Client is located and all countries in which any User or any recipient of any Message is located; and

b. in relation to VettingGateway all data protection and/or privacy laws, principles and agreements applicable to the United Kingdom;

 

“Employment Laws” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to employment in the countries in which the Client operates and/or in which any User or any recipient of any Message is located;

 

“Extended Data Storage Plan” means the storage of Client Personal Data by VettingGateway for a period of five (5) years from the Data Storage Start Date;

 

“Initial Term” means either:

a. for Clients paying for their Subscription by credit or debit card payment, the period of one (1) calendar month from the Commencement Date; or

b. for Clients paying for their Subscription by invoice payment, the period of twelve (12) calendar months from the Commencement Date;

 

“Intellectual Property” means any and all patents, copyrights (including future copyrights), design rights, trademarks, Trade Mark, service marks, domain names, trade secrets, know-how, database rights, and all other intellectual property rights, whether registered or unregistered, and including applications for any of the foregoing and all rights of a similar nature which may exist anywhere in the world and provided by or owned by VettingGateway or its Associated Companies;

 

“Marketplace” means the Software-enabled marketplace where the Client can purchase third party background-checks on a reducing credit-balance basis for consumption as part of the Services.

 

“Material” means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form belonging to VettingGateway but for the avoidance of doubt does not include material belonging to the Client;

 

“Messages” means any communications and content sent by the Client using the Software to any User or third party in connection with the Services, including, but not limited to, communications and content sent by email and SMS;

 

“Notice Period” has the meaning set out in clause 10.2.1;

 

“Privacy Policy” means the addendum constituting part of this Agreement which is set out at www.vettinggateway.com/privacypolicy;

 

“Renewal Period” means each successive period of:

a. for Clients paying for their Subscription by credit or debit card payment, one (1) calendar month from expiry of the Initial Term which shall automatically renew on each monthly anniversary of the Commencement Date; or

b. for Clients paying for their Subscription by invoice payment, twelve (12) calendar months from the date of expiry of the Initial Term which shall automatically renew on each annual anniversary of the Commencement Date;

 

“Services” means the provision of the VettingGateway Software for use by the Client and by any User according to the Subscription as set out on the Site at the initial date of purchase in all material respects, together with such other services agreed between VettingGateway and the Client from time to time or ancillary to the Services;

 

“Site” means VettingGateway’s website at www.vettinggateway.com;

 

“Software” means VettingGateway’s background-checking workflow and data processing software, including its Marketplace;

 

“Subscription” means the licence tier (i.e. “Starter”, “Business” or “Enterprise”) selected by the Client in conjunction with the Client’s selection of the quantity of licences, the data storage plan and the purchase payment method (as applicable);

 

“Trademark” means the ‘VettingGateway’ registered trademark and logo and any future registration of any similar mark or branding of VettingGateway or of any Associated Companies or third parties provided or used as a part of these Services or any application for registration anywhere in the World;

 

“User” means any user of the Software including (but not limited to) any applicant who is invited by the Client to undergo background-checks as part of the Services;

 

“VettingGateway” means IDGateway Limited, a company incorporated in England and Wales under registration number 07918726, whose registered office is at Athenia House, 10-14 Andover Road, Winchester, Hampshire SO23 7BS;

 

“Working Day” means Monday to Friday excluding statutory holidays in the United Kingdom; and

 

“Working Hours” means 9.00 to 17.00 on a Working Day in the United Kingdom.

 

1.2 Subject to clause 14, any reference in these terms to ‘writing’ or related expressions includes but shall not be limited to a reference to email, communications via websites and comparable means of communication.

1.3 Except where the context requires otherwise: the singular includes the plural and vice versa; a reference to one gender includes all genders; and words denoting persons include firms and corporations and vice versa.

 

2.0 Supply of Services

2.1 VettingGateway shall provide the Services to the Client as applicable to the Subscription, for the term set out in clause 10.2 and in accordance with this Agreement.  The Client may purchase additional Services at any time. Additional purchases of Services made through the Software shall run coterminous with the Subscription. The Client may only have one type of Subscription tier at any one time. Any alterations made to the Subscription tier shall apply to all active licences.

 

2.2 VettingGateway uses third parties to host the Software and all Client Personal Data. The Client hereby consents to VettingGateway using data centres located in the United Kingdom and/or the European Union (EU) for all such hosting.

 

2.3 VettingGateway does not warrant that the Services shall be uninterrupted, error, bug or virus free or that the delivery of Messages shall be without delay. No guarantees are offered by VettingGateway in relation to the uptime of the Software or the Site or the availability of the Services unless otherwise applicable to the Subscription.

2.4 It may be necessary for VettingGateway to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Software or the Site. VettingGateway shall use its reasonable endeavours to provide the Client with at least forty-eight (48) hours’ notice of temporary suspensions of the Services and to undertake any scheduled and planned maintenance or repair work outside of Working Hours in order to minimise disruption to the Services provided to the Client. Such communications shall be made via the Software or the Site or via such other channels as VettingGateway deems appropriate. However, VettingGateway reserves the right to carry out urgent maintenance or repair work at any time. Services may also be suspended in whole or in part where VettingGateway or any relevant third-party is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority. VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause.

2.5 VettingGateway cannot guarantee the delivery of Messages to any User or to any recipient of any Message as this is dependent upon accurate and up to date User and recipient contact information, suitable internet availability and connectivity, on various anti-spam and junk mail policies adopted by a User’s or by a recipient’s service providers. Accordingly, VettingGateway makes no representations or warranties whatsoever about the speed or number of Messages sent that shall be received by any User or recipient. VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.5.

 

2.6 VettingGateway cannot guarantee that the Services or any aspect of them shall satisfy any Background-Check Regulations. Where background-check templates are made available to the Client through the Software, VettingGateway makes no representations or warranties whatsoever about their suitability for use. The Client shall remain responsible for assessing the suitability of background-check templates and/or modifying them to comply with any applicable Background-Check Regulations and accordingly VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.6.

 

2.7 VettingGateway shall ensure that Clients shall have access to VettingGateway’s support team, where support shall be provided in accordance with the particulars applicable to the Client’s chosen Subscription tier.

2.8 VettingGateway reserves the right to amend the Software, Site and Services at any time if necessary to comply with any applicable law or regulatory requirement.

3.0 Charges, Invoicing and Payment

3.1 In consideration of VettingGateway providing the Services, the Client shall pay the Charges in accordance with this clause 3.

 

3.2 The Client shall pay the Charges in pound sterling (GBP) as set out on the VettingGateway Site from time to time. The Subscription Charges are strictly non-refundable. Marketplace Charges may vary from time to time due to the tariffs set by the third party suppliers. VettingGateway reserves the right to cancel and refund unused credits if any Marketplace supplier makes a material change to their service which is detrimental either to the Client or to VettingGateway or for any other reason. Subject to VettingGateway’s right to cancel and refund in the aforementioned scenario, Marketplace Charges are strictly non-refundable.

3.3 VettingGateway may from time to time increase the Charges, change the nature of any Subscription tier and/or change the payment terms; however, any changes shall apply no earlier than thirty (30) days following notice to the Client. If the Client gives notice of any objection within the thirty (30) day notice period the parties shall attempt to mutually agree the changes to be made and if no agreement is reached within thirty (30) days’ of the notice of objection being served, either party may terminate this Agreement by giving the other thirty (30) days’ notice in writing.

3.4 All Charges quoted to the Client for the provision of the Services are exclusive of any applicable VAT or other sales tax, for which the Client shall be additionally liable at the applicable rate from time to time.

3.5 VettingGateway shall invoice the Client as follows:

3.5.1 Where the Client purchases a Subscription by invoice payment, VettingGateway shall invoice any fixed Charges to the Client annually in advance on the Commencement Date of the Initial Term and then annually in advance on each anniversary thereafter.

3.5.2 Where the Client purchases a Subscription by credit or debit card payment, VettingGateway shall charge any fixed Charges to the Client monthly in advance on the Commencement Date of the Initial Term and then monthly in advance thereafter.

3.5.3 VettingGateway shall invoice any Marketplace Charges to the Client on the date of purchase.

3.6 Where the Client operates purchase orders it shall promptly provide to VettingGateway valid, up-to-date and complete purchase order information acceptable to VettingGateway and any other relevant valid, up-to-date and complete contact and billing details.

3.7 Except in the case of invoices which are settled by credit or debit card, the Client shall pay all invoices raised by VettingGateway within 14 days of the date of each invoice to a bank account nominated in writing by VettingGateway from time to time. No payment shall be deemed paid until VettingGateway receives payment in cleared funds from the Client.

3.8 If the Client fails to pay VettingGateway any Charges due pursuant to this Agreement, VettingGateway shall be entitled to: (a) charge interest (both before and after any judgement) on the outstanding amount at the rate of 4% above the base rate of HSBC Bank plc from time to time, accruing on a daily basis from the due date until the outstanding amount is paid in full; and (b) recover from the Client any amount incurred by VettingGateway utilising any third party debt agency due to the Client’s failure to pay any Charges outstanding.

 

3.9 If the Client fails to pay any sums due to VettingGateway by the date each payment falls due, VettingGateway shall send a payment reminder to the Client.  If payment remains outstanding five (5) days from the date on which the payment reminder was sent to the Client, VettingGateway reserves the right to:

3.9.1 disable the account; and

3.9.2 temporarily suspend the provision of the Services to the Client until such time as all outstanding invoices have been settled in full in cleared funds, whereupon the Services shall be reinstated. Before reinstating the Services, VettingGateway may require the Client to pay a fee for reinstating the Services (as notified to the Client by VettingGateway) and/or set up a credit or debit card for payment of all future Charges.

3.10 In the event of an invoice being disputed by the Client for valid and reasonable grounds, VettingGateway may agree to continued provision of the Services whilst discussions take place to resolve the basis of the dispute in accordance with the provisions of clause 12.1, provided that the undisputed portion of any relevant invoice is paid. If the Client disputes any portion of an invoice based upon usage of the Services, the Client accepts that VettingGateway’s records of such usage are correct unless proven otherwise by an independent expert.

 

3.11 Where the Client adds licences to its Subscription during the Initial Term or during any Renewal Period, such additional licence Charges shall be charged pro-rata up to the expiry of the then current Initial Term or Renewal Period.

4.0 Data Protection and Data Storage

 

4.1 Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws and the Data Processing Agreement. This clause 4 and the Data Processing Agreement is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Laws.

4.2 The Client is the Data Controller and VettingGateway is the Data Processor in respect of the Client Personal Data that VettingGateway processes in the course of providing Services. Client Personal Data is derived from data provided or sourced by the Client and is not checked for accuracy or completeness by VettingGateway. Accordingly, VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise as a result from the accuracy, content or use of such Client Personal Data, provided that any such use by VettingGateway is in accordance with its obligations under this Agreement.

4.3 The Client grants VettingGateway and any Associated Company the prior, general right to process Client Personal Data as necessary to provide the Services in a manner that is consistent with this Agreement. The Client shall be responsible for the accuracy, content and use of the Client Personal Data.

4.4 In relation to the Client Personal Data, the Data Processing Agreement sets out the scope, nature and purpose of processing by VettingGateway, the duration of the processing and the types of personal data and categories of data subject.

4.5 VettingGateway shall not use any Client Personal Data except in connection with the provision of Services:

4.5.1 as set out in this Agreement; or

4.5.2 as required by law, regulation or regulatory body or any court of competent jurisdiction.

4.6 The Client represents and warrants that:

4.6.1 it has obtained and shall continue to obtain the necessary appropriate permissions and consents to enable lawful transfer of the Client Personal Data to VettingGateway for processing pursuant to clause 4.3 for the duration and purpose of this Agreement;

4.6.2 it has registered with an appropriate data protection authority and shall not use the Services at any time during which it does not have an appropriate and valid data protection registration;

4.6.3 it shall take appropriate organisational and technical measures against unauthorised or unlawful processing;

 

4.6.4 it shall obtain where appropriate express, specific and informed consent when obtaining personal data from data subjects.

 

4.7 Data Storage Plans

 

4.7.1 VettingGateway offers its Clients the choice of two data storage plans for the retention of Client Personal Data:

4.7.1.1 The Basic Data Storage Plan; and

4.7.1.2 The Extended Data Storage Plan

4.7.2 Basic Data Storage Plan

VettingGateway shall automatically enrol the Client onto the Basic Data Storage Plan and whilst this Basic Data Storage Plan persists the Client Personal Data related to any new Data Storage Start Dates which are created shall be stored in the Software for twelve (12) months from each Data Storage Start Date. The Client Personal Data related to each Data Storage Start Date shall then be automatically deleted twelve (12) months from each Data Storage Start Date. 

4.7.3 Extended Data Storage Plan

4.7.3.1 If the Client wishes to store Client Personal Data in the Software for a period in excess of the Basic Data Storage Plan, the Client must purchase the Extended Data Storage Plan. Whilst this Extended Data Storage Plan persists the Client Personal Data related to any new Data Storage Start Dates which are created shall be stored in the Software for sixty (60) months from each Data Storage Start Date. The Client Personal Data related to each Data Storage Start Date shall then be automatically deleted after sixty (60) months from each Data Storage Start Date. 

4.7.3.2 The Client shall pay VettingGateway’s applicable Charge for the provision of the Extended Data Storage Plan. To be eligible for enrolment and to remain subject to the Extended Data Storage Plan, the Client must have at least one (1) active “Enterprise” licence within its Subscription and must be paying annually in advance for its Subscription. Subsequent Charges for the provision of the Extended Data Storage Plan shall be invoiced automatically in advance on an annual basis unless notice to terminate the Subscription is received in accordance with this Agreement.

4.7.3.3 The Extended Data Storage Plan shall only apply to Client Personal Data related to Data Storage Start Dates created on the date of purchase of the Extended Data Storage Plan and for a period of twelve (12) months thereafter. The Extended Data Storage Plan shall not apply retrospectively to Client Personal Data stored in the Software prior to the date of purchase of the Extended Data Storage Plan. (Any such Client Personal Data shall remain subject to the Basic Data Storage Plan.)

4.7.3.4 If the Client wishes to cancel its Extended Data Storage Plan, the Client must first contact VettingGateway using the instructions provided within the Software. Cancellation of the Extended Data Storage Plan shall only take effect on the next anniversary of the start date of the Extended Data Storage Plan.  For the avoidance of doubt, all Client Personal Data related to Data Storage Start Dates prior to the effective date of cancellation shall continue to be stored in accordance with the Extended Data Storage Plan, notwithstanding its upcoming cancellation, whereas all Client Personal Data related to Data Storage Start Dates created after the effective date of cancellation of the Extended Data Storage Plan shall be stored in accordance with the Basic Data Storage Plan.

4.7.3.5 Non-payment by the Client of VettingGateway’s applicable Charge for the provision of the Extended Data Storage Plan, when due, shall be deemed as a cancellation of the Extended Data Storage Plan which may be enacted by VettingGateway with immediate effect and without further notice to the Client.

 

5.0 Client’s Obligations

 

5.1 The Client warrants that it shall not:

5.1.1 use the Services in any way so as to bring the Services or VettingGateway into disrepute;

5.1.2 resell the Services (or any part of them) without the prior written consent of VettingGateway;

5.1.3 use the Services to send Messages which may be considered by the recipient to be advertising, promotional material, ‘junk mail’, or ‘spam’;

5.1.4 use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another person’s privacy;

5.1.5 use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects;

5.1.6 misuse the Software or the Site by introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;

5.1.7 attempt to gain unauthorised access to the Software or the Site, the server on which the Software or the Site are stored or any server, computer or database connected to the Software or the Site; or

5.1.8 attack the Software or the Site via a denial-of-service attack or a distributed or malicious denial-of service attack.

5.2 The Client agrees that it shall:

 

5.2.1 comply and ensure that its use of the Services complies with all Codes and Employment Laws applicable to the country in which the Client is registered and its Users and any recipient of any Message reside;

5.2.2 provide all reasonable assistance required by VettingGateway to enable VettingGateway to comply with any requirements or conditions imposed by such Codes or Employment Laws;

5.2.3 provide VettingGateway, any relevant authority or regulator of the Codes or Employment Laws with all information or material reasonably requested in order to carry out any investigation in connection with the Client’s, or a User’s, use of the Services;

5.2.4 use commercially reasonable efforts to prevent unauthorised access to or use of the Services and notify VettingGateway promptly of any such unauthorised access or use; and

5.2.5 be solely responsible for all use of the Services and Materials under its name.

VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise as a result of any Messages sent using the Services being in breach of the Client‘s obligations under this clause 5.2.

5.3 VettingGateway monitors Messages created by the Client. If VettingGateway considers in its reasonable opinion that the Client is sending Messages in breach of clauses 5.1 and 5.2 above, VettingGateway may at its absolute discretion (considering the Client’s track record of use of the Services):

5.3.1 suspend provision of Services; and

5.3.2 block the Client’s access to the Services for such time as in each case is reasonable. VettingGateway shall usually provide the Client with prior notice of any suspension or blocking, unless immediate action is necessary in the circumstances. VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.3.

5.4 The Client shall keep its passwords and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The Client shall notify VettingGateway immediately if it believes that such information is no longer secret. The Client is solely responsible for all activities resulting from use of the Client’s passwords or account. The Client shall not permit any person to access the Services for any unauthorised purpose that would constitute a breach of this Agreement.

5.5 Without prejudice to its other rights under this Agreement VettingGateway reserves the right to prevent the sending of any Messages forming part of the Services or any other item or material made available via the Services by the Client at any time and without notice, where the content is in VettingGateway’s reasonable opinion a breach of this Agreement. VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.5.

5.6 The Client is not permitted to conduct vulnerability scanning, or any form penetration testing against the Software or the Site including any application servers relating thereto.

6.0 Ownership & Use of the Intellectual Property Rights

6.1 The Client acknowledges and VettingGateway warrants to its reasonable belief and knowledge that:

6.1.1 VettingGateway is the proprietor of the Intellectual Property and Materials subsisting or arising out of or in connection with the Services; and

6.1.2 the Intellectual Property and Materials do not infringe the intellectual property rights of any third party.

6.2 VettingGateway hereby grants to the Client a personal, non-exclusive and non-transferable licence to use the Intellectual Property and/or Materials for the duration of the Initial Term and any Renewal Period strictly in accordance with this Agreement only. The Client shall not be entitled to use the Intellectual Property and/or Materials for any purpose other than the use of the Services, including, without limitation, that the Client shall have no right to copy, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works, modify, sell, rent, lease, transfer, assign, sub-licence, make any representations, warranties or guarantees with regard to the Intellectual Property and/or Materials in whole or part except as permitted by law.

6.3 The Client shall only use the Intellectual Property and/or Materials or any VettingGateway branding in the form stipulated by VettingGateway from time to time and shall observe all directions given by VettingGateway as to colours and size and representations of the Trade Mark and branding and their manner and disposition on the Client’s products, packaging, labels, wrappers and any accompanying leaflets, brochures or other materials.

6.4 The use of the Intellectual Property and/or Materials by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by VettingGateway and the Client shall cease any use to the contrary as VettingGateway may require.

6.5 The Client shall not use any mark or name confusingly similar to the Trademark in respect of any of its Services or use the Trademark as part of any corporate business or trading name or style. VettingGateway may use the Client’s trademarks within the Software where this forms part of the Services being delivered to or otherwise utilised by the Client.

6.6 The Client shall as soon as it becomes aware thereof give VettingGateway in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trade mark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of VettingGateway’s rights in relation to the Intellectual Property and/or Materials or to passing off.

6.7 If the Client becomes aware that any other person, firm or company alleges that the Intellectual Property and/or Materials is invalid or that use of the Intellectual Property and/or Materials infringes any rights of another party or that the Intellectual Property and/or Materials is otherwise attacked or attackable the Client shall as soon as reasonably possible give VettingGateway full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.

6.8 VettingGateway shall have the conduct of all proceedings relating to the Intellectual Property and/or Materials and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property. The Client shall not be entitled to bring any action relating to the Intellectual Property in its own name but shall reasonably assist VettingGateway upon VettingGateway’s reasonable request.

7.0 Confidentiality

 

7.1 Subject to clause 7.2, neither party shall disclose at any time during the Initial Term or any Renewal Period and for a period of ten (10) years after termination, any information to any third party relating to the other party including information relating to:

7.1.1 Intellectual Property, software, the Software, materials, the Materials, products, systems, operations, processes, plans or intentions, product information, know-how and market opportunities; and

7.1.2 business, identity and affairs and the business, identity and affairs of its directors, officers, employees, customers and potential customers or personal data relating to Users, customers, suppliers, agents, or subcontractors and the like, which comes into the possession of the other party as a result of or in connection with the performance or receipt of the Services.

7.2 The provisions of clause 7.1 shall not apply to any information which:

7.2.1 is in or enters the public domain other than by a breach of clause 7.1; or

7.2.2 is in the possession of the receiving party without restriction in relation to disclosure before the date of its receipt in connection with this Agreement; or

7.2.3 is obtained from a third party who is lawfully authorised to disclose such information and is provided to the receiving party without any obligation of confidentiality;

7.2.4 is authorised in advance for release by the disclosing party; or

7.2.5 may be required to be disclosed under applicable legislation or the order of a Court or other competent authority.

 

8.0 Limitation of Liability and Indemnity

 8.1 This clause 8 sets out the entire financial liability of either party to the other (including any liability for the acts or omissions of a party’s employees, agents, consultants, and subcontractors) in respect of:

8.1.1 any breach of this Agreement;

8.1.2 any use of the Services or any part of them; and

8.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

8.2 Without limiting a party’s express warranties and obligations hereunder, and except as expressly provided herein, the Services are provided “as is,” and neither party makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, or non-infringement to the fullest extent permitted by law. VettingGateway additionally disclaims all warranties related to telecommunications providers. The Client acknowledges that internet and telecommunications providers’ networks are inherently insecure and that VettingGateway shall have no liability for any changes to, interception of, or loss of Client Personal Data while in transit via the internet or via a telecommunications provider’s network.

8.3 Nothing in this Agreement limits or excludes the liability of either party:

8.3.1 for death or personal injury resulting from negligence; or

8.3.2 for any damage or liability incurred as a result of fraud or fraudulent misrepresentation;

8.3.3 for any other liability which cannot be excluded by applicable law.

8.4 Subject to clauses 8.2, 8.3, 8.5 and where expressly stated:

8.4.1 neither party shall be liable to the other under this Agreement for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

8.4.2 VettingGateway’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution arising in connection with the performance, or contemplated performance, of this Agreement, shall in total be limited to the Subscription Charges paid or payable during the previous 12 months, in respect of any single claim or series of connected claims brought by the Client under this Agreement.

8.5 The Client shall indemnify VettingGateway against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses)  suffered or incurred by VettingGateway arising out of the Client’s use of the Software or the Client’s receipt of the Services or the Client’s breach of clause 5. This indemnity shall not cover VettingGateway to the extent that a claim under it results from VettingGateway’s negligence or wilful misconduct.

8.6 As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) shall promptly notify the indemnifying party (“Indemnifying Party”) of any Claim; provided, however, that the failure to give prompt notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party shall have the sole authority to defend or settle a Claim; and (c) the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defence of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not settle any Claim for which it has an obligation to indemnify under this clause 8, admit liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.

 

8.7 Nothing in this clause 8 shall restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this clause 8.

9.0 Force Majeure

 

9.1 Neither party shall be responsible to the other in circumstances where some or all of the obligations (except for the obligation for the payment of Charges) under this Agreement cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, third party hacking, viruses, trojans, worms, logic bombs or other material attacking the Site, a denial-of-service attack, a distributed or malicious denial-of service attack, failure of communication facilities, unavailability of the internet. However, if such circumstances persist for more than fourteen (14) days, the non-defaulting party may terminate this Agreement and all Charges due to VettingGateway up to the date of termination shall become immediately due and payable.

 

10.0 Term, Suspension and Termination

10.1 This Agreement shall come into force on the Commencement Date and shall govern both the provision of the Services by VettingGateway and the use of the Services by the Client until terminated in accordance with this clause 10. 
 

10.2 VettingGateway shall provide the Services to the Client as applicable to the Subscription purchased by the Client through the Software for the Initial Term and for any Renewal Period. Upon expiry of the Initial Term, the Subscription shall automatically renew for successive Renewal Periods, unless a party terminates by giving at least thirty (30) days’ written notice prior to expiry of the Initial Term or any Renewal Period (“Notice Period”)

10.3 VettingGateway may immediately and without notice terminate or suspend this Agreement or the provision of Services if :

10.3.1 the Client’s account remains inactive for a period of 12 months or more; or

10.3.2 the Client fails to pay any Charges due under this Agreement on the due date for payment; or

10.3.3 the Client becomes subject to any of the events listed in clause 10.5.2 or VettingGateway reasonably believes that the Client is about to become subject to any of them,

any suspension of the Services under this clause 10.3 shall endure until the circumstances giving rise to the suspension cease to exist or until this Agreement is terminated by either party. In the event that VettingGateway suspends this Agreement or the provision of Services under clause 10.3 the Client shall pay all Charges owing or due for the period when the Services are suspended.

10.4 Either party may terminate this Agreement immediately if:

10.4.1 either party commits a material breach of this Agreement and (if capable of remedy) the breaching party fails to remedy the breach within  thirty (30 ) days after being required by written notice so to do; or

10.4.2 either party becomes insolvent or bankrupt, enters into an arrangement with creditors, has a receiver or administrator appointed or its directors or shareholders pass a resolution to suspend trading, wind up or dissolve that party other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease, trading.

10.5 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under this Agreement and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to the warranties and indemnities contained in this Agreement.

11.0 Effects of termination

 

11.1 Where a Subscription is terminated by either party before the end of the Initial Term or then-current Renewal Term (except where terminated by the Client due to a material breach of this Agreement by VettingGateway) all remaining Charges for the Initial Term or then-current Renewal Term including any outstanding Marketplace Charges (as applicable) shall be immediately payable.

11.2 Following termination:

11.2.1 all Services purchased by the Client shall no longer be available to the Client, including any unused items purchased by the Client in the Marketplace, for which the Client shall not be entitled to any refund;

11.2.2 VettingGateway shall have no obligation to retain any Client Personal Data. If the Client wishes to export any Client Personal Data, it must do so in accordance with the functions available in the Software. Where the Client requires VettingGateway to mass export any Client Personal Data then a charge shall be levied for this additional service which VettingGateway shall advise to the Client at the time;

11.2.3 VettingGateway may following termination of this Agreement retain certain Client Personal Data for statistical and analytical purposes, provided that such Client Personal Data contains no personally identifiable information or is otherwise retained in accordance with applicable Data Protection Laws;

11.2.4 the Client shall immediately cease using the Intellectual Property and the Materials;

11.2.5 any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.

12.0 Disputes

12.1 In the event of 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), the parties shall within ten (10) days of a written request from a party to the other, meet in a good faith effort to resolve the dispute without recourse to proceedings. If the dispute is not resolved as a result of such meeting, any party may (at such meeting or within fourteen (14) days from its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor (the “Neutral Adviser”). If the parties are unable to agree on the appointment of a Neutral Adviser or the Neutral Adviser is unable or unwilling to act, either party may within fourteen (14) days from the date of the proposal apply to appoint a different Neutral Adviser. The parties shall within fourteen (14) days of the appointment of the Neutral Adviser meet with him or her in order to agree a programme for the exchange of any relevant information and the structure to be adopted for the negotiations. All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the parties in any future proceedings. If the parties accept the Neutral Adviser’s recommendations or otherwise reach agreement on the resolution of the disputes, such agreement shall be set down in writing and, when signed by their duly authorised representative, shall be binding on the parties. Failing agreement, either of the parties may invite the Neutral Adviser to provide a non-binding opinion in writing. Such opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings commenced pursuant to this Agreement without the prior written consent of the parties.

 

13.0 Assignment

13.1 Neither party shall assign the whole or any part of this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. However, VettingGateway shall be entitled to assign this Agreement to any entity that purchases the shares or assets of its business as the result of a merger, takeover or similar event.

14.0 Communication & Notices

14.1 Notices or proceedings relating to a dispute shall be given by first-class post addressed to the other party at its registered office or principal place of business. Other notices required to be given by either party to the other under this Agreement may be given in writing by post or by email. Where such notice is given by VettingGateway to the Client by email it shall be sent to the registered email address of the primary User of the Client.

14.2 Any such notice shall be deemed to have been received:

14.2.1 if delivered personally, at the time of delivery; or

14.2.2 if sent by post within the United Kingdom, two  (2) Working Days after posting; or

14.2.3 if delivered by email, at the time of delivery; or

14.2.4 if sent to any other country within five (5) Working Days after posting; provided that if deemed receipt occurs before 9am or after 5pm on a Working Day then the notice shall be deemed to have been given on the next Working Day.

15.0 General

15.1 Except where otherwise expressly stated herein, this Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of this Agreement. In the event of any conflict between this Agreement and the terms contained in any other document, this Agreement shall prevail.

15.2 VettingGateway may at its reasonable discretion, change or modify this Agreement or Services to comply with a change in any applicable law upon giving the Client thirty (30) days’ notice of the same either by email or by notification on the Software or the Site.

15.3 Each party warrants to the other that it has the power and authority:

15.3.1 to enter into this Agreement; and

15.3.2 to perform its obligations under this Agreement.

15.4 This Agreement shall not be deemed to create any partnership or employment relationship between the parties.

15.5 Nothing contained in this Agreement is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise.

15.6 No act, failure or delay to act, or acquiescence by VettingGateway or the Client in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right or in any way prejudice any right of VettingGateway or the Client under this Agreement, and no waiver by VettingGateway of any breach of this Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver or relaxation (whether partly or wholly) of any of the terms of this Agreement shall be valid only if in writing and signed by or on behalf of VettingGateway and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions of this Agreement.

 

15.7 If any provision of this Agreement is held by any court or other competent authority to be unlawful, invalid or unenforceable in whole or in part, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

 

16.0 Jurisdiction and Applicable Law

 

16.1 Each party agrees that the Agreement is subject to the applicable law of the United Kingdom. Further, the courts of the United Kingdom shall have exclusive jurisdiction to determine any disputes arising under this Agreement.